CONSERVATORSHIPS
Conservatorships come in several varieties. There is a General Conservatorship, which can last indefinitely. There is an Emergency Conservatorship, which can last a maximum of 60 days, unless converted to a general Conservatorship. There is an Expedited Limited Healthcare Fiduciary, which is used when a patient in a hospital setting needs discharge and there is no one who can, or will, help with placement, and the patient is unable or unwilling to assist with a safe discharge plan. Expedited Limited Healthcare Fiduciary appointments also last a maximum of 60 days unless converted to a General Conservatorship. All of these are for adults. The same mechanisms apply for minors, although the appointment is then called a Guardianship.
So what needs to be proven to obtain a conservatorship? Interestingly, it is not lack of capacity or insanity. As then Judge Koch observed in the case of In re Conservatorship of Groves:
Tennessee’s conservatorship statutes do not define the concept of incapacity and do not identify any particular illnesses or conditions deemed to be disabling or incapacitating. The definition of “disabled person” alludes in the most general terms to “mental illness, physical illness, developmental disability or other mental or physical incapacity.” Thus, while identification of the disabling illness, injury, or condition is an important part of a conservatorship proceeding, the pivotal inquiry involves not merely the diagnosis but also the effect that the illness, injury, or condition has had on the capacity of the person for whom a Conservator is sought.
In re Conservatorship of Groves, 109 S.W.3d 317, 331–32 (Tenn. App. 2003)
Any conservatorship-like proceeding must be started with a petition, not a complaint. The petition must be sworn and should, as a general matter, be accompanied by a Report of Physician (see attached form) that is sworn by a physician who has seen the proposed Ward within 90 days of making the report. The Report of Physician is designed to be admitted to court without further authentication or testimony. The Report is hearsay if objected to by someone. A careful practitioner will establish whether or not the Report will be objected to on hearsay grounds (or any other ground for that matter)well ahead of any hearing. Many courts will allow telephonic or video appearances by physicians; but arrangements for such should be made in time for the court to make appropriate arrangements.
If a conservatorship is granted, the following powers may be taken from the Respondent and given to the Conservator:
(a) If the court determines a Co-Conservator is needed, the court shall enter an order which shall:
(1) Name the Co-Conservator or Co-Conservators and, in the court’s discretion, a standby Conservator or Conservators;
(2) Enumerate the powers removed from the Respondent and those to be vested in the Conservator. To the extent not specifically removed, the Respondent shall retain and shall exercise all of the powers of a person without a disability. The court may consider removing any rights of the person with a disability and vesting some or all in a Conservator. Such rights may include, but are not limited to:
(A) The right to give, withhold, or withdraw consent and make other informed decisions relative to medical and mental examinations and treatment;
(B) The right to make end of life decisions:
(i) To consent, withhold, or withdraw consent for the entry of a “do not resuscitate” order or the application of any heroic measures or medical procedures intended solely to sustain life and other medications; and
(ii) To consent or withhold consent concerning the withholding or withdrawal of artificially provided food, water, or other nourishment or fluids;
(C) The right to consent to admission to hospitalization and to be discharged or transferred to a residential setting, group home, or other facility for additional care and treatment;
(D) The right to consent to participate in activities and therapies which are reasonable and necessary for the habilitation of the Respondent;
(E) The right to consent or withhold consent to any residential or custodial placement;
(F) The power to give, receive, release, or authorize disclosures of confidential information;
(G) The right to apply for benefits, public and private, for which the person with a disability may be eligible;
(H) The right to dispose of personal property and real property subject to statutory and judicial constraints;
(I) The right to determine whether or not the Respondent may utilize a Tennessee driver license for the purpose of driving;
(J) The right to make purchases;
(K) The right to enter into contractual relationships;
(L) The right to execute instruments of legal significance;
(M) The right to pay the Respondent’s bills and protect and invest the Respondent’s income and assets;
(N) The right to prosecute and defend lawsuits; and
(O) The right to execute, on behalf of the Respondent, any and all documents to carry out the authority vested above.
(P) The right to communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail;
(3) If the rights and powers transferred to the Conservator include management of the Respondent’s property, the order shall:
(A) Set the amount of the Co-conservator’s bond unless waived as authorized in § 34-1-105;
(B) Set the nature and frequency of each approved expenditure and prohibit the Co-conservator from making other expenditures without court approval;
(C) Set forth the approved management of the property of the disabled person; and
(D) Prohibit the sale of any property except as permitted by § 34-1-116(b) without prior court approval or as permitted in the property management plan approved by the order; and
(4) Whether a Conservator is being appointed from § 34-3-103(6), and, if the Conservator is being appointed from § 34-3-103(6), the reasons why the court was unable to appoint a Conservator from § 34-3-103(1) – (5);
(5) State any other authority or direction as the court determines is appropriate to properly care for the person or property of the disabled person.
(b) If the court grants a protective order placing under seal the Respondent’s financial information, as provided by § 34-3-106(6), the order shall not deny access to information regarding fees and expenses of the conservatorship.
(c) If a Respondent is unable to express consent to communication, visitation, or interaction with a person due to a physical or mental condition, then consent of the Respondent may be presumed based on the Respondent’s prior relationship history with the person.
Tenn. Code § 34-3-107
PROCEDURE:
In a standard conservatorship a petition is made citing who the parties are, the relationship of the Petitioner, proposed Ward and proposed Conservator are to each other. Family must be identified and given notice of the petition. Venue is jurisdictional, so the residency of the proposed Ward must be set out in the petition. (There are exceptions for emergency cases.) A newly expanded legal requirement is that the proposed Conservator must: Set out their relationship with the proposed Ward; whether or not they have ever been convicted of a felony or misdemeanor, and; whether or not they have ever been sentenced to prison. Note that it is sentenced, not served. There are sentences where no time is served, but because it is a felony, there is still a sentence to prison.
Statistical information concerning the proposed Ward must be provided. Where the information is located varies from court system to court system. A wise practitioner would do well to ask first.
Once the petition is filed the Court will appoint a Guardian ad Litem (GAL), a local attorney whose job it is to identify assets and income of the Respondent, as well as make an analysis of the need for a conservatorship as well as the suitability of the proposed Conservators. One preliminary duty of the GAL is to establish whether or not the Respondent wants to fight the Conservatorship. If that is the case, the GAL should report that fact to the court as soon as is possible. The court may then appoint an Attorney ad Litem (AAL) and then either discharge the GAL or retain the GAL, depending on circumstances.
A hearing is set where the court will consider the Petition, the Report of Physician, any testimony and the report of the GAL. The Respondent is allowed to testify. The AAL, if any, is allowed to put on a defense. After that, the proceeding may be dismissed or a Conservator over the person, the property, or both the person and property may be appointed. The decision can be appealed. Additionally, the Respondent may challenge the conservatorship at any time. The Conservator is under an ethical duty to notify the court if the Respondent appears to be no longer in need of a conservatorship. The Conservator should also get independent medical advice on the continuing need for a conservatorship, or not, if there is any doubt about the issue.
Emergency conservatorships and ELHF proceedings have different procedures from a normal conservatorship. ELHF proceedings are brought by hospitals and other healthcare facilities. The statute is below:
(a) If the Respondent is under hospitalization in a hospital as those terms are defined in TCA title 68, chapter 11, part 2, and no other person, including an agent acting under the Healthcare Decision Act TCA title 68, chapter 11, part 8, a person acting under the Durable Powers of Attorney for Healthcare Act title 34, chapter 6, part 2 or a living will under TCA title 32, chapter 11, Part 1, appears to have the authority and willingness to act and is acting in the best interest of the Respondent, the court on petition of a person interested in the Respondent’s welfare may appoint an expedited limited healthcare fiduciary whose authority is for the limited purpose of consenting to discharge, transfer, and admission and consenting to any financial arrangements or medical care necessary to affect such discharge, transfer or admission to another healthcare facility and whose authority may not exceed sixty (60) days. Immediately upon the receipt of the petition for an expedited limited healthcare fiduciary, the court shall appoint an attorney ad litem to represent the Respondent in the proceeding. In expediting the appointment of an expedited limited healthcare fiduciary, the court may vary the time periods for hearings including but not limited to the minimum number of days before a hearing under TCA § 34-1-108 or the number of days before appointment of a guardian ad litem under TCA § 34-1-107 or other time periods, but shall not vary requirements as necessary to determine the Respondent is in need of a fiduciary.
(b) The court shall hold a hearing on the appropriateness of the appointment within five (5) days of the appointment.
(c) Appointment of an expedited limited healthcare fiduciary is not a determination of the Respondent’s incapacity.
(d) The court may remove an expedited limited healthcare fiduciary at any time.
(e) The time periods set forth in this section are mandatory and not directory. Failure to comply with those provisions shall void any expedited appointment and remove the authority previously granted to the expedited limited healthcare fiduciary.
Tenn. Code § 34-1-133
Emergency Conservatorships:
Emergency conservatorships follow many of the same procedures as an ELHF. They are brought be persons and entities other than hospitals. Sometime hospitals also bring emergency conservatorships as emergency Conservators have more powers than an ELHF and those powers are sometime needed for a safe discharge. The Emergency conservatorship statute is below:
(a) If the court finds that compliance with the procedures of this title will likely result in substantial harm to the Respondent’s health, safety, or welfare, and that no other person, including an agent acting under the Health Care Decision Act compiled in title 68, chapter 11, part 18, or a person acting under the Durable Powers of Attorney for Healthcare Act, compiled in chapter 6, part 2 of this title or a living will pursuant to title 32, chapter 11, appears to have authority to act, willingness to act, and is acting in the best interests of the Respondent in the circumstances, then the court, on petition by a person interested in the Respondent’s welfare, may appoint an emergency guardian or Conservator whose authority may not exceed sixty (60) days and who may exercise only the powers specified in the order. Immediately upon receipt of the petition for an emergency guardianship or Conservatorship, the court shall appoint an attorney ad litem to represent the Respondent in the proceeding. Except as otherwise provided in subsection (b), reasonable notice of the time and place of a hearing on the petition shall be given to the Respondent and any other person as the court directs.
(b) An emergency guardian or Conservator may be appointed without notice to the Respondent and the attorney ad litem only if the court finds upon a sworn petition that the Respondent will be substantially harmed before a hearing on the appointment can be held. If the court appoints an emergency guardian or Conservator without notice to the Respondent, the Respondent shall be given notice of the appointment within forty-eight (48) hours after the appointment. The court shall hold a hearing on the appropriateness of the appointment within five (5) days after the appointment.
(c) Appointment of an emergency guardian or Conservator, with or without notice, is not a determination of the Respondent’s incapacity.
(d) The court may remove an emergency guardian or Conservator at any time. The court may appoint a guardian ad litem to investigate the circumstances. An emergency guardian or Conservator shall make any report the court requires. In other respects, the provisions of this title concerning guardians or Conservators apply to an emergency guardian or Conservator.
(e) The time periods set forth above in this section are mandatory and not directory. Failure to comply with those provisions shall void any emergency appointment and remove the authority previously granted to an emergency fiduciary.
Tenn. Code § 34-1-132
ELHF:
Hospitals do not ask for the appointment of an Expedited Limited Healthcare Fiduciary (ELHF – pronounced like the pointy-eared little people who help Santa) unless there is no other viable choice. The proceeding is started because the hospital has been unable to find any family or friends who are willing to become responsible for the life and welfare of the patient. Oftentimes this is because placement in skilled care centers, nursing homes, and applications for TennCare are daunting.Those things are especially daunting because the patient has no doubt demonstrated that they are not capable of making safe decisions about their own medical care and living arrangements after they leave the hospital.
Going to court to get a fiduciary appointed is expensive. The hospital has to pay their own lawyers to get the petition for appointment going and to make sure it stays on track. There are court costs. Oftentimes there are the fees of the attorney ad litem and the Conservator or ELHF for the first sixty days as well. You can be sure the hospital is not seeking appointment of a fiduciary unless they have to seek that appointment.
Paying for care is a big hurdle. There are public assistance programs like SSI and TennCare. Those programs require proof of financial need. Both SSI and TennCare require that the person have $2,000 or less. TennCare wants the last three months of bank statements. Getting that information can be a problem, especially with a Ward who has no intention of co-operating with any such effort. The worst ones are the ones with online-only banking or with a payment card from Walmart and similar services. Trying to get information out of those institutions is next to impossible.
Most of the time the hospital will have staff or a service that helps obtain benefits. This is a real boon because they can access information about health coverage that you cannot easily find. That assistance comes at a cost, though. If the hospital made the TennCare application, TennCare will not talk with you. Frustratingly, TennCare has no mechanism for sending in your court papers appointing you as a fiduciary. You have to make your own application to TennCare for that Ward, hoping you do not screw up benefits they already have in the process.
Being a Conservator:
What is the fiduciary’s task? You have to get the Ward placed in a safe place, one that can take care of their medical and personal needs. You have to make sure there is a way that placement and care can be paid for. You have to make sure they have clothing and furniture where necessary. And you have to do all that while giving your Ward the most personal freedom consistent with their health and safety.
“The court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the disabled person that are consistent with adequate protection of the disabled person and the property of the person with a disability.” Tenn. Code § 34-1-127
Placement in a safe place where the Ward can be adequately cared for is an important part of your job. You must pay attention to what the hospital says the Ward’s level of care needs are and ensure that the facility can handle those needs. Fortunately, most hospitals have a case worker who has already been on the job scouting out facilities and making sure there is an available bed. That is a more difficult task than you might think. Many of the Wards you will get are in the position they are in because they have worn out their welcome at more than one place.
You should be prepared to work hand in glove with the hospital that made the referral as well as other qualified medical providers. No matter how much you think your common sense is going to be enough, it will not be adequate to the task. People with mental disorders significant enough to merit the appointment of a fiduciary are not going to act in ways that can be positively affected by common sense most of the time. “Ask, don’t assume” needs to be your motto.
You should also always approach your task with the firm knowledge that the people with whom you are dealing are just as worthy of compassion as you are. Yes, they may be quite off putting or even scary. That is part of the reason why they need help. Treating your Wards with dignity and allowing them the most freedom compatible with their own health and safety is your most important task.
Conservatorship is not a magic wand. The Conservator can generally do no more than the Ward could do if they were well. Sometimes the task of the Conservator is playing a losing hand as well as it can be played.
In addition to untangling the mess into which someone has placed themselves, the Conservator also has legal obligations to the court. The Conservator must submit an inventory and a property management plan. The Conservator must submit annual accountings to the court unless they are waived by the court. Annual status reports cannot be waived by a court. The Conservator may also be required to post a bond in the amount of liquid resources of the Ward plus the annual expected income of the Ward. In order to post a bond the prospective Conservator will need to have a good enough credit rating to be able to obtain a bond. The client should be warned that unless the Ward has resources, the Conservator will need to be prepared to do all this without being paid.
A word about accountings: Courts will want the front and the back images of checks. It is amazing how many banks no longer provide that service. Some banks only provide images of checks online. If that is the case, make sure the Conservator prints out those images every month. If the checks are online, they are generally only online for a short time.
Problems:
Finding out Finances: The Respondent and family should be able to provide information about resources and income. If not, try to gain information from an employer or past employer. Searching the Respondent’s wallet may provide information, although it will set back any trusting relationship between the Conservator and Respondent if it is done without consent. Another way is to look for any bills, checks, or statements. Old tax returns provide valuable information. If nothing else works, do an IRS Form 2848, Power of Attorney, and send it in to the IRS along with your conservatorship letters and a request for several years of tax transcripts. Those transcripts will identify any entity reporting income, etc., concerning the Respondent.
The Social Security Administration often has useful information. While you are getting that information you should also become the representative payee or identify a charitable entity that can serve as representative payee. While it my seem like a good idea to retain Social Security income, be aware that you may find yourself hosting a several day audit of your Social Security accounts, and you will not be able to do other business while the audit is going on.
Visitation and Phone Calls: Under the Campbell Faulk Actand as an ethical duty in general, a Conservator should allow visitation with the Respondent unless there is good reason to regulate or forbid visitation. Banning or limiting visitation without good reason can result in being sued and having to pay the attorney fees of the successful litigant. Tenn. Code Ann. §34-3-107(a)(2)P and Tenn. Code Ann. §34-3-108(f). It is best practice to seek a court order concerning any limitation on visitation or phone calls.
Miscellaneous Problems That May Happen:
Elopement is a phrase used by facilities for people who run away. It just sounds better. I still get calls from the VA about appointments for one gentleman who disappeared one day and has not been seen or heard from by me for over two years. This is quite a trick because he is wheelchair-bound because of a missing leg. At our last encounter his fond parting words were; “I’m gonna kick your ass.”
Disappearing Ward: I had one Ward who did not wander away. She disappeared when her behavior, which was admittedly bad, prompted the various facilities to send her by ambulance to the nearest hospital with psych facilities. This happened at least four times in a three year span. When I would call the last known facility for an update, they would tell me they shipped her off on such and such a date, usually a month or more in the past. When I asked what hospital, the answer was usually, “I don’t know; ask the ambulance service.” Calling the local hospitals was not much help as they would cite HIPAA. Shipping out conservatorship orders got me past HIPAA but not always to where my Ward was now. The best source was to contact her TennCare MCO and get the name and address of the last place that sent in a medical bill. They usually knew where my Ward was living that month.
A final word: Your Wards may not always get better. In fact, they stand a good chance of getting worse. Some die. Your task is not to get them better. Remember, teams of medical personnel were working on that, and they were not succeeding when you got appointed. Your task is to seek guidance from professionals, treat your Ward with dignity, and do the best you can. That is going to create the best result you can get.