What is it?
If an adult with a disability cannot make their own decisions, the court can legally assign someone else to make decisions for them. The person the court assigns to make decisions is called a “conservator”.
Along with letters of conservatorship, a conservatorship order is the paperwork from the court that assigns someone to be a conservator. It will list which decisions the conservator is allowed to make for the person with a disability. The person with a disability keeps the right to make all other decisions about their life.
There are two types of conservatorships.
- A “full conservatorship” means the conservator has been given the right to make all life decisions for the individual with a disability. These decisions may include: financial decisions, medical decisions, legal/contract decisions, decisions about where to live, what to eat, the right to vote, the right to obtain a driver’s license, and decisions related to relationships and marriage.
- A “limited conservatorship” means the conservator is given the right to make some decisions for the individual with a disability and the individual keeps the right to make all other decisions in their life.
Sometimes courts or attorneys also refer to “conservatorship over the person,” a “conservatorship over the property” or a “conservatorship over both the person and the property”. This is to identify the decision-making rights that are being removed by the conservatorship.
In Tennessee, every conservatorship should be limited to those areas in which the person with a disability does not have capacity to make decisions.
We encourage you to use the tools and processes described in “I can decide with no extra support” and “I need support with my decision” for all decisions the person is still making about their life.
What does Tennessee law say?
Conservatorship is defined in Tennessee Code Annotated 34-1-101(4)(A): “Conservatorship is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators.” You can look up the Tennessee law here: https://www.lexisnexis.com/hottopics/tncode.
What are my rights as the person with a disability (“respondent”) if someone wants to be my conservator?
Tennessee Code Annotated Title 34 Chapter 3 Section 106 (TCA 34-3-106) says you have a right to:
On demand by respondent or the guardian ad litem, a hearing on the issue of disability;
- This means you can ask for a special meeting at court to help decide if you need a conservator because of your disability.
Present evidence, including testimony or other evidence from a physician, psychologist or senior psychological examiner of the respondent’s choosing, and confront, as a cross-examiner, witnesses;
- This means you can tell the court what you want and need, even if it’s not the same as the person who wants to be your conservator.
Appeal the final decision on the petition with the assistance of an attorney ad litem or adversary counsel;
- This means you can ask the court to change their mind if they give you a conservator you don’t want, and you can get a special attorney to help you.
Attend any hearing:
- This means you can attend all the court meetings about your conservatorship.
Have an attorney ad litem appointed to advocate the interests of the respondent; and
- This means you can ask the court for a special lawyer to help ask for what you want.
Request a protective order placing under seal the respondent’s health and financial information, including reports provided under TCA § 34-3-105(c).
- This means you can ask the court to keep details about your health and money private.
What does the National Guardianship Association say about conservatorship?
The National Guardianship Association is not the law but it talks about best practices for conservatorships (called guardianships in some other states). *The State of Tennessee uses the term conservatorship to replace guardianship.
Under all circumstances every person under conservatorship should:
- Exercise his/her rights retained
- Participate in all decisions that affect him or her
- Act on his or her own behalf in all matters in which the person is able to do so, and
- Develop or regain his or her own capacity to the maximum extent possible
The conservator shall:
- Ask the person what s/he wants
- Do everything possible to help the person express wants and needs
- Seek input from others to determine what they would have wanted only when the person, even with assistance, cannot express wants and needs; and
- Make a decision in the person’s best interest only when the person’s goals and preferences cannot be understood
The conservatorship shall be terminated when:
- The person has developed or regained capacity in areas in which he or she was found incapacitated by the court
- The person expresses the desire to challenge the necessity of all or part of the conservatorship
- Less restrictive alternatives exists
Tennessee follows the best interest standard.
Every state’s conservatorship statute looks different. To implement a conservatorship that’s right for your unique situation, it’s best to get professional help. The Center for Decision-Making Support can help you connect with professionals: (615) 248-5878, ext.322.
How do I learn more?
Conservatorship requires you to go to court. You should have a lawyer. If you would like more information or want to talk to a lawyer contact Disability Rights Tennessee call 1(800) 342-1660.
Read more in this Conservatorship and Alternatives to Conservatorship Handbook.
Conservatorship and Alternatives