As a Memphis attorney that assists in probate court with will, trust and conservatorship challenges and petition, I wanted to advise on some key basic changes for a Memphis Conservatorship Challenge.
“The purpose of a conservatorship proceeding is to protect the person and property of a [person with a disability].” In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995) (citations omitted). “Conservators are court appointed fiduciaries who act as agents of the court and their rights and responsibilities are set forth in the court’s orders.” In re Lawton, 384 S.W.3d 754, 761 (Tenn. Ct. App. 2012) (quoting AmSouth Bank v. Cunningham, 253 S.W.3d 636, 641 (Tenn. Ct. App. 2006)). Their fiduciary position of trust is “of the highest and most sacred character.” Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn. 1998) (citation omitted). “The court itself is ultimately responsible for [persons with a disability] who come under its care and protection[.]” In re Conservatorship of Clayton, 914 S.W.2d at 90 (citations omitted).
Under Tennessee Code Annotated § 34-1-126, a petitioner seeking the appointment of a conservator must prove by clear and convincing evidence that the person for whom the conservatorship is sought is disabled and in need of assistance. In re Lawton, 384 S.W.3d at 761 (citations omitted). After the petitioner meets his burden, “the trial court is then charged with responsibility for determining whether the appointment is in the respondent‟s best interest.” Id. (citation omitted). In determining which person should be appointed to serve as conservator, the trial court is guided by the following order of priority:
- The person or persons designated in a writing signed by the alleged person with a disability;
- The spouse of the person with a disability;
- Any child of the person with a disability;
- Closest relative or relatives of the person with a disability;
- A district public guardian as described by § 34-7-104; and
- Other person or persons.
Tenn. Code Ann. § 34-3-103 (Supp. 2014).
The designation of a particular person to serve as conservator is left to the discretion of the trial court. In re Conservatorship of Todd, 2010 WL 2350568, at *8 (citation omitted). Nevertheless, in order to appoint a conservator under Tennessee Code Annotated § 34-3-103, the trial court must make two determinations. First, the trial court must determine what is in the best interest of the person with a disability, considering all relevant facts. Id. (citing Crumley, 1997 WL 691532, at *3). Second, the trial court must determine “who, under the prioritized list, is the appropriate conservator.” Id. (citing Crumley, 1997 WL 691532, at *3). Moreover, when the trial court finds that a conservatorship is needed, it “has an affirmative duty to ascertain and impose the least restrictive alternatives upon the person with a disability that are consistent with adequate protection of the person with a disability and the property of the person with a disability.” Tenn. Code Ann. § 34-1-127 (Supp. 2014).