Disclaimer: This article is for educational purposes only. It is not legal advice.
Detailed Answer
1. Determine Whether Guardianship or Conservatorship Applies
In Tennessee, a guardian makes personal and health decisions for an incapacitated adult, while a conservator manages the person’s financial affairs. You must establish that your relative lacks the capacity to manage personal or financial matters under Tenn. Code Ann. § 34-3-101. Medical evidence, such as a physician’s affidavit, helps show incapacity.
2. Prepare and File a Petition in Probate Court
File a sworn petition in the county probate court where the person resides. The petition must identify the proposed ward, describe the alleged incapacity, and state why guardianship or conservatorship serves the person’s best interests under Tenn. Code Ann. § 34-3-104. Include the names and addresses of the proposed ward, petitioner, close relatives, and any current legal representatives.
3. Serve Notice and Appoint an Attorney Ad Litem
After filing, serve a copy of the petition and notice of hearing on the proposed ward, spouse (if any), adult children, parents, and siblings at least 10 days before the hearing (Tenn. Code Ann. § 34-3-105). The court will appoint an independent attorney ad litem to represent the proposed ward’s interests.
4. Attend the Probable-Cause Hearing
The court holds a hearing to determine if there is probable cause to believe the person is incapacitated. You may present medical reports, testimony, and witness statements. If the judge finds probable cause, the process moves to a full evidentiary hearing.
5. Participate in the Final Evidentiary Hearing
At this hearing, the petitioner bears the burden of proving incapacity by clear and convincing evidence. The proposed ward has rights to notice, counsel, and to present evidence. If the court is satisfied, it will appoint a guardian or conservator and issue Letters of Guardianship or Letters of Conservatorship.
6. Post-Appointment Duties and Reporting
Once appointed, the guardian must make personal decisions that align with the ward’s best interests. A conservator must manage assets prudently and keep detailed records. Both must file periodic reports with the court, typically annual reports of the ward’s status and financial accounting (Tenn. Code Ann. § 34-3-109).
Helpful Hints
- Consult a medical professional early to document incapacity.
- Check local probate court rules for filing fees and forms.
- Be ready to propose limited or partial guardianship/conservatorship if full authority isn’t necessary.
- Gather a list of assets and close relatives before filing.
- Keep clear records and receipts for all financial transactions.
- Communicate regularly with the court-appointed attorney ad litem.
- Consider periodic reviews and modification if the ward’s condition changes.