Defining Legal Guardianship
Legal guardianship is defined as the legal appointment of a guardian for a minor child or to manage the person’s property and affairs. The Tennessee Trust Code, T.C.A. § 35-15-102, provides the statutory definitions applicable to TN trust, estate, and guardianship matters.
The estimated number of guardianships in Tennessee is around 52,000. There are approximately 2,580 public guardianship cases in Tennessee. Guardian ad litems represent 12,868 minors and adults in Tennessee.
Legal guardianship is an arrangement in which a court appoints an individual ("guardian") to take care of the personal and financial affairs of a person ("ward"). It can only be initiated by petitioning the Court for a hearing, and it requires the appointment of a fiduciary who takes possession of the assets of the protected party. Upon appointment of the fiduciary , the protected party’s assets are transferred or assigned to the fiduciary for administration. The initial appointment of a guardian is based upon a showing of necessity – such as a finding of incapacity or disability. Delaying or avoiding the onset of it is almost always a bad idea.
The basic statutory authority for legal guardianships is found in T.P. C. §§ 34-601 through 34-614 (Protection of Persons Under Disability and Long-Term Care). These statutes state that guardians may be appointed "by the court in the county where [a] person resides or is found upon the application of classes of persons enumerated therein." T.P.C., § 34-601(a). The classes of people who may petition for the appointment of a guardian over an adult include the adult’s spouse; children over 18 years of age; parents; siblings and many other persons deemed fit by the court. The person petitioning for the appointment of a guardian has the burden of proving the need for the appointment.
Forms of Legal Guardianship in Tennessee
In Tennessee, guardianship of a minor can be granted by the court under various circumstances. The most common form of legal guardianship of a minor in Tennessee is guardianship of a minor conservatorship. Other types of guardianships that a court may appoint a guardian to a minor are temporary, permanent, and limited guardianships.
A temporary guardianship usually lasts up to sixty (60) days or less. The court sets the initial period, and a temporary guardianship can be renewed one or more times for a period no less than thirty (30) days. Under T.C.A. § 34-6-302, A temporary guardianship over a minor is appropriate if:
Any person appointed as a temporary guardian of the person of the minor shall be subject to any regulations the circuit or chancery court may impose in the interests of the minor.
A permanent guardianship over a minor lasts until the child reaches eighteen (18) years of age. There are two types of permanent guardianships in Tennessee.
A limited adult guardianship gives authority to a guardian over certain areas or for certain purposes only. Guardianships of a minor can be limited by the court to apply only to certain circumstances or items. Limited guardianships provide only the specific powers granted by the court, but may be expanded immediately by filing a petition to modify with the court when such authority is needed to act outside the limited powers granted.
Powers of a guardian of a minor under a limited guardianship are set forth under T.C.A. 34-6-154 which provides as follows:
The court that appoints a guardian of the person of a minor under this part shall specify the powers of the guardian by reference to the powers conferred by § 34-6-301(d). The guardian may be granted all or less than all of the powers conferred upon a guardian of the person.
A limited guardianship order may be for any or all of the following powers the court deems necessary under the circumstances but need not include a power that the minor may lawfully exercise.
Establishing a Guardianship
Before anything, it is important to note that the State of Tennessee’s Rule of Civil Procedure is mainly the same as the Federal Court Rules (and yet different from other states). Just an important side note in case you need to reference something in the establishment of a guardianship, in a specific court.
Step 1: Consultation
As with any process, consultation with your attorney about the matter is the first step. Consultations are often free and will be as thorough as you want them to be, so do not hesitate to ask questions and to learn about what you need to do. Guardianship is a complicated matter, especially as an executor of an estate. You need to know your actions, what you should do and shouldn’t do. Make sure you know all the legalities, too. Ask all your questions.
Step 2: Choosing the Candidate
Before the paperwork starts, you need to make sure you have the right candidate for the guardianship. Are they unfit, unable, or do they have the desire? You need to make sure you choose the right fit.
If there is the possibility of a dispute, you want to contact an attorney. Normally, a family member will take control of the estate in guardianship and there will be no arguments, but if there is an argument, you need to get an attorney involved.
Step 3: File the Petition
After you have filed the proper paperwork and have identified the necessary parties and your choice for guardianship, you will need to file the proper petition with the probate court. The petition contains a lot of information, including:
It is a lot to unpack:
Once this is all filed, the court may set a date for a hearing, sending out a notice to the potentially hostile parties.
Step 4: Investigation
In Tennessee, the filing of a petition for your proposed guardian serves as a notice that an investigation on that potential guardian will be held. The court will appoint an investigatory council to go into the home of the applicant for guardianship and gather evidence on that person. They may also enter the home of the person to be named the protected party to examine their health needs, living conditions, financial stability, and any other pertinent information.
This council will later complete a form called the "Statement of Investigation."
Step 5: The Hearing
As soon as both parties have been served with notice of the hearing, the hearing will be scheduled. They could take more than 45 days from the date of service, depending on the schedule of the court.
Under Tennessee Code Annotated § 34-6-307, the hearing will determine if there is a need for a guardian and to take evidence in a contested case. The burden of proof rests on the petitioner.
Under T.C.A. § 34-1-106, if the respondent has an attorney represent them, the attorney in charge of that respondent will send you all relevant documents, including medical information. Contested hearings include a lot of information that must be provided, including:
There are also specific timelines regarding when certain evidence must be completed and returned to the court:
If the proceeding was against a person who is deceased, those hearings are still valid and can be continued.
During the hearing, the court will hear witness testimony, hear medical reports/testimony, and evaluate the package presented by each party. Times and dates for this process may vary depending on the judge and the court system in the State of Tennessee you are dealing with.
Guardian’s Role and Obligations
Tennessee law requires the Court to list the rights bypassed and retained by the Court, as consequences of the guardianship. Here are some examples.
Bypass of the Following Rights:
- Right to choose residence. The guardian has the right to choose the residence of the ward, but must select a residence that is similar to appropriate scenarios for others in the community who have like circumstances or disabilities.
- Right to enter into any contracts. This means that the guardian can sign contracts on behalf of the Ward.
- Right to retain control over income. The ward can keep a small about of income and savings for spending money.
- Right to vote or serve as an executor or as an attorney in fact. The ward gives up these rights while under a guardianship .
Right Retained by the Ward:
- Right to establish a domicile and select medical care. The guardian cannot tell the ward where to get medical care. This is a personal decision.
- Right to make a Will. Nothing changes regarding the ability to make a Will while under a guardianship arrangement.
- Right to obtain legal assistance. This is the only right you need to know about because we all need legal assistance at various times in our lives.
- Right to have access to certain records. The Judge can determine what records the ward has access to in the guardianship arrangement.
Generally speaking, the authority granted to a guardian is broad and far reaching. It is not something that should be taken lightly. As a guardian, you should be careful about how you exercise your authority.
Dissolving Guardianship
There are a few different ways that a legal guardianship can be brought to an end in Tennessee. How this will happen in each case can be tricky, so this section will lay out the requirements and some various scenarios.
First, if the legal guardianship was entered into based on a finding of incapacity by the court, it will automatically terminate when the ward regains capacity as evidenced by his or her ability to understand the facts and implications of decisions to be made, and to express a sufficient understanding and a willingness to participate in decisions. T.C.A. § 34-6-103(1) (2016).
Second, the parties to the guardianship may agree to terminate the guardianship if they all agree that the incapacity is no longer an issue. The former ward must be of sound mind and there is additional written documentation required.
Third, the former ward may file a petition to terminate the guardianship. See T.C.A. § 34-6-211 (2016).
Fourth, the court may terminate the guardianship on its own motion. T.C.A. § 34-6-206 (2016). This can happen when the court believes it no longer needs to supervise the guardianship. Careful handling of this type of termination is important for both parties.
Fifth, the termination can be ordered by the court upon a petition by the conservator, guardian, or any interested person on the ground that the condition that was the basis for the guardian having been appointed has ceased to exist and the guardian no longer needs to remain in place. T.C.A. § 34-6-210 (2016). This is the most common scenario for termination of an emergency temporary guardianship designation.
Potential Issues
Families in Tennessee who have disabled individuals, whether they’re minor children or adult ailing parents, often come across the complex subject of legal guardianship. As adults age and their health declines, it’s common that family members are faced with the decision of applying for legal guardianship. And while establishing guardianship of a disabled child is a concern that typically requires less advance planning, the issues and challenges faced ahead can be overwhelming. Knowing what to expect in guardianship cases means being aware of the greatest challenges and considerations that can arise.
There are many challenges involved in seeking legal guardianship of a disabled child or adult . Some of the most common, however, include: These hurdles can all become sources of significant emotional and financial challenges for families. And unless guardianship appointments are planned in advance or strategically at the onset of care, the challenges also extend into legal issues. For example, there are certain restrictions that apply to how guardianship funds can be spent, and failing to follow these laws and other orders can require unfortunate and inconvenient legal steps. For this reason, seeking out legal assistance is a necessity in Tennessee guardianship cases. An attorney can guide you through the various considerations involved and help you to reduce the chance of encountering adverse effects as you move forward.
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