Until July, 2013, there was no statute in Tennessee governing how and under what circumstances a court could appoint an emergency conservator for a person with a disability (called the “respondent” in this type of proceeding). At the same time, there were situations that sometimes called for the appointment of a conservator immediately and, at the same time, there have been a few instances where the appointment of an emergency conservator has been controversial and perhaps abused.
By way of background, any interested adult can file a petition with a Tennessee court asking for the appointment of a conservator for a Tennessee resident. The petitioner must set out why a conservator is needed and attach a sworn statement by a physician who has seen the respondent in the last 90 days. In a requirement added in 2012 both the petitioner and proposed conservator (often the same person) must state whether they have been convicted of any felony or misdemeanor. As a practical matter, a proposed conservator who will take care of the respondent’s property will need to make bond, and probably will not qualify if he or she has taken bankruptcy.
Now there is a new statute that clarifies the procedure for the appointment of an emergency conservator. The petition must allege and the judge must find that following the usual procedure for appointment of a conservator, which would take longer, will likely result in substantial harm to the respondent’s health, safety or welfare. The judge must find that no one, including someone acting under a power of attorney for healthcare matters, appears to have the authority or willingness to act on behalf of the respondent (or that no one is actually acting in the best interests of the respondent).
If this showing to the judge and findings by the judge are made, the judge must immediately appoint a lawyer for the respondent and give reasonable notice to the respondent of the time and place for a hearing. At that hearing, the court may appoint an emergency conservator who has authority to act for only 60 days and who can only exercise the powers set out in the court’s order. A further hearing would be necessary for authority past the 60 day period.
If the judge finds on the basis of a sworn petition the situation to be so urgent that the respondent is in danger of substantial harm before a hearing can be held, the judge can appoint an emergency conservator without a hearing. In this case, the respondent must be given notice of the petition within 48 hours and a hearing must take place within 5 days.
The judge can also appoint a lawyer to act as a “guardian ad litem” whose role is to investigate the respondent’s circumstances and to make a report and recommendations to the court about the respondent’s best interests. A guardian ad litem is like an independent expert, while the attorney appointed for a respondent advocates the respondent’s position, like any traditional lawyer.
The time periods set out in the new provision for emergency conservatorships are mandatory. There will now be a definite and speedy procedure when someone believes that a person in Tennessee with a disability needs the protection of a court.