Are Conservatorship Protections Adequate?

conservatorship_protectionRecent controversy about the conservatorship of Nashville songwriter Danny Tate may leave some caregivers cringing at the very mention of the word “conservator.” Families of elders for whom conservatorship has been petitioned may fear that, like Tate, their loved one will be subjected to a kind of “civil death,” being suddenly stripped of all rights without due cause. But is Tate’s situation the norm in conservatorship or a rare exception to the rule?

For sure the process of conservatorship is not perfect, but Tennessee conservatorship law does contain many protections to prevent a person from losing his or her rights without a chance to defend him or herself. The important point – and the place where things seem to have fallen through the cracks with Tate – is that the statutory protections require courts to be the gatekeeper of our rights and sometimes even with the best intentions of well-reasoned and impartial judges, the legal process is not perfect.

According to Tennessee law, a court may establish conservatorship when a disabled person cannot manage his or her affairs. This person, called the “respondent,” is an adult “determined by the court to be in need of … supervision, protection and assistance by reason of mental illness, physical illness or injury, … or other mental or physical incapacity.” When a conservatorship is filed, the respondent faces losing his or her rights to transact business, drive, vote, marry, and make health care decisions.

Of course, conservatorship is not automatically granted. The law requires that the respondent be notified of the proceedings and the hearing. Then a guardian ad litem is appointed by the court to assess, advise, and advocate for the respondent. The respondent has the right to an attorney and the right of due process. If requested, the court must appoint an attorney ad litem to fight the proceedings. Medical evidence based on a recent examination is required, and proof of disability must be “clear and convincing.”

If conservatorship is granted, the court must impose the least restrictive alternative that is sufficiently protective of person and property. That means that some, but not necessarily all, of the respondent’s civil rights can be transferred to the conservator. Court costs are typically covered by the losing party. Conservators are accountable to the court and must acquire bond equal to the value of the respondent’s liquid assets plus one year of investment income.

The main reason for concern with conservatorship proceedings is that even with all these protections, judges have wide discretion in courts of equity, and these protective provisions, under some circumstances, may be waived. Waiver may provide citizens with flexibility and reduce some of the burden, expense, and delay that a strict interpretation of the law might require. However, this flexibility has an associated level of risk, as demonstrated by the Tate example.

For answers to your questions about conservatorship proceedings, get in touch with Elder Law attorney Amelia Crotwell at 865-951-2410. Whether you are seeking conservatorship for a disabled adult or fighting an unfair conservatorship petition, Elder Law of East Tennessee can help get you on the right path.