By Amy Willoughby Bryant
Understandably, some people may be confused by the terms conservatorship and guardianship, which can be used to describe authority over two different things. However, in the U.S., there is no uniform federally mandated definition for the two terms. States determine how they choose to use these terms, and who gets described as either a conservator or a guardian. In Tennessee, the terms used to describe a person who has been appointed by the Court to have authority for an adult person deemed to have a disability is called “conservator of the person,” “conservator of the property (or estate)” or “conservator of the person and property.” In Tennessee, the term “guardianship” is used to describe persons under the age of 18. Additionally, the law specifies who is eligible to serve as a conservator and who can file to establish one.
Currently, in order to establish a conservatorship, you must prove that an individual is disabled by a clear and convincing legal standard, which is usually accomplished through a sworn statement by a physician, psychologist, or senior psychological examiner. In other words, evidence must be presented to the Probate Court and verified by a medical professional.
The TN Court of Appeals case In re Conservatorship of Groves, lays the foundation for judges to use when determining an individual’s disability or incapacity. An individual with a “disability” for purposes of a conservatorship is one for whom autonomy has become either partially or totally impaired. In other words, the individual lacks the ability to absorb information, to understand its implications, to correctly perceive the environment, or to understand the relationship between his or her desires and actions. When a person’s autonomy becomes impaired, others step in to make choices on the person’s behalf, to promote the person’s best interests and to protect the person from harm. This process is called a “Conservatorship.”
With over 2,400 conservatorships, Davidson County has more conservatorships than any other county in Tennessee. Tennessee laws provide the framework for courts to determine how to provide oversight of conservatorship cases. This includes mandatory reporting requirements such as the Report of Physician and an annual status report. Other reporting requirements, determined on a case by case basis, may include the appointment of a guardian ad litem or attorney ad litem, an inventory, an annual accounting, and a bond.
The Office of Conservatorship Management (OCM) was created to provide additional oversight and protection for adult persons with a disability subject to a conservatorship. In addition to an assessment of health, safety, and welfare, the OCM also help to identify and refer conservators to resources available, based upon the needs and circumstances of each person. The OCM maintains a database of all conservators appointed by the Probate Courts of Davidson County for efficient management of the cases. The OCM also conducts a yearly financial review of each conservatorship of the property that require annual accountings. Upon completion of an investigation, the OCM may need to file a report to alert the Probate Court.
The OCM wants the citizens of Davidson County to know that
conservators are expected to follow a code of ethics and we strive to
preserve the dignity of people with disabilities. Please visit the OCM
website for FAQ’s and a wealth of information on conservatorships:
ocm.nashville.gov
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