What Is the Difference?
Guardianship and conservatorship are court processes focused on protecting incapacitated or vulnerable citizens. Commonly, this includes minor children, the elderly, those living with certain disabilities, or those who become incapacitated due to an injury or illness. Both guardianships and conservatorships transfer legal decision-making power to an appointed guardian or conservator.
If a minor child loses their parents or their primary caregiver cannot take care of them, the courts may appoint a guardian to them. The guardian is there to oversee both their physical and financial well-being. Appointed guardians are legally tasked with making important decisions regarding the care of the minor child and/or their property. The goal is to ensure that the minor child has a stable upbringing with access to the resources and care they need to flourish.
Just as minor children are vulnerable, many adults are also in need of care and guardianship. When someone cannot make their own financial or medical decisions, the courts may appoint them a conservator. Where guardianship is for unemancipated minors under 18, a conservatorship is available for adults over the age of 18. A conservator may be appointed to oversee the vulnerable adult's physical well-being and/or manage their property and estate for their benefit.
Both guardians and conservators may be tasked with making decisions for their ward regarding:
- Financial needs
- Health care
- Real estate management
- Physical needs
What Is a Guardian Ad Litem?
When dealing with guardianship and conservatorship issues, the courts may decide to appoint a guardian ad litem. The purpose of the guardian ad litem is to protect the interests of the subject of the guardianship or conservatorship. The guardian ad litem is an important role and can help ensure that a vulnerable adult or minor child is not exploited or taken advantage of. They typically investigate the entire situation, conduct interviews with those involved, and work with the individual in question.
The guardian ad litem will then make their recommendation to the courts regarding the guardianship or conservatorship. In some cases, they may even name a recommended guardian or conservator for the vulnerable individual.
How to Appoint a Guardian or Conservator
Tennessee probate courts are responsible for handling guardian and conservator matters. When seeking guardianship or conservatorship, a petition and supporting documents must be filed with the local probate court. While often guardians and conservators are close relatives, you do not have to be related to the individual to be appointed a guardian or conservator. When making the decision, the courts will consider what is in the affected individual's best interests.
Additionally, you do not have to be seeking an appointment as a guardian or conservator to call for a hearing. Often, interested parties or loved ones will call for a hearing, even though they do not intend to serve as guardian or conservator themselves.
In Tennessee, if someone is at risk of immediate harm, the courts have the option to appoint an emergency conservatorship. Emergency conservatorship court orders are most common when the vulnerable adult is being abused or neglected by their current caretakers. The courts take emergency conservator petitions very seriously.
While they may immediately appoint someone as a conservator, they will also schedule a follow-up hearing within five days to determine if the emergency conservatorship was the right move and whether or not it should continue. Emergency conservatorship appointments cannot last more than 60 days. There will also be a second hearing scheduled to make a more permanent determination.
The legal process of selecting a guardian or conservator is complicated and can be time-consuming. These matters are often contested, and you should work with a skilled guardianship or conservatorship attorney.
If you are concerned about a relative or loved one, turn to Casey, Simmons & Bryant, PLLC for compassionate guidance. Contact our law firm online or call our office at (731) 256-0023.