tncode

Chapter 1
Guardianships and Conservatorships Generally

34-1-101. Chapter 1-3 definitions.

As used in this chapter and chapters 2 and 3 of this title, unless the context otherwise requires:

“Adversary counsel” means a private lawyer hired by a respondent to represent the respondent's interest in any action under this chapter and chapters 2 and 3 of this title;
“Attorney ad litem” means an attorney appointed by the court to act as counsel for the respondent;
“Closest relative” or “closest relatives” means the person or persons who are in the level of intestate heirs nearest to the respondent under the Tennessee laws of intestate succession. If there are two (2) or more closest relatives, all such persons shall be treated equally;
1. “Conservator” or “co-conservators” means a person or persons or an entity appointed by the court to exercise the decision-making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by the orders of the court;
2. “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;
“Corporate surety” means a corporation admitted to do business in the state and licensed under title 56, chapter 2;
“Court” means any court having jurisdiction to hear matters concerning guardians or conservators;
“Fiduciary” means a guardian, coguardian, conservator, co-conservator, or qualified trustee as defined in § 35-16-102(12)(A);
“Financial institution” means a bank as defined by § 45-2-107, a savings and loan association as defined by § 45-3-104, a credit union subject to title 45, chapter 4, or a nonprofit general welfare corporation as defined in § 45-2-105;
“Guardian” or “coguardian” means a person or persons appointed by the court to provide partial or full supervision, protection and assistance of the person or property, or both, of a minor;
“Guardian ad litem” means a person meeting the qualifications set forth in § 34-1-107(c) appointed by the court to investigate the allegations in a petition, perform the duties set forth in § 34-1-107(d) and report to the court with recommendations as to the best interests of the respondent;
“Least restrictive alternatives” means techniques and processes that preserve as many decision-making rights as practical under the particular circumstances for the person with a disability;
“Minor” means any person who has not attained eighteen (18) years of age and who has not otherwise been emancipated;
“Person” means any individual, nonhuman entity or governmental agency;
“Person with a disability” means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity;
“Physician” means a medical doctor or doctor of osteopathic medicine who is licensed to practice medicine in the state of Tennessee;
“Property management plan” means the plan submitted by the fiduciary for the investment and management of the property of a minor or person with a disability;
“Psychologist” means a psychologist who is licensed to practice in the state of Tennessee; and
“Respondent” means a person who is a minor or is alleged to be a person with a disability for whom a fiduciary is being sought.

Acts 1992, ch. 794, § 2; 1994, ch. 901, § 4; 1996, ch. 811, § 1; T.C.A. § 34-11-101; Acts 2010, ch. 831, § 1; 2013, ch. 435, §§ 2-6; 2018, ch. 605, § 1; 2019, ch. 340, § 3.

Compiler's Notes. Former ch. 1, §§ 34-1-101 — 34-1-107 (Acts 1859-1860, ch. 99, §§ 1, 2; 1899, ch. 177, § 1; Shan., §§ 4256, 4257, 5868a1; Acts 1923, ch. 41, §§ 1-3; 1927, ch. 79, § 1; mod. Code 1932, §§ 8463-8466, 8472, 8473, 10070; 1951, ch. 23, § 1; 1951, ch. 148, § 1 (Williams, § 8476); 1955, ch. 137, § 1; 1957, ch. 102, § 1, 1959, ch. 147, § 1; 1961, ch. 337, §§ 1, 2; 1963, ch. 48, § 1; 1972, ch. 612, § 3; impl. am. Acts 1975, ch. 219, § 1; Acts 1976, ch. 675, § 1; 1978, ch. 523, §§ 1, 2; 1978, ch. 662, § 1; T.C.A. (orig. ed.), §§ 34-101 — 34-103, 34-105, 34-106, 34-108, 34-109; Acts 1984, ch. 668, § 1; 1985, ch. 140, § 30; 1991, ch. 181, § 1), concerning general provisions for guardians, was repealed by Acts 1992, ch. 794, § 1, effective January 1, 1993.

Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Acts 1992, ch. 794, § 52 provided that for each existing guardian or conservator, the provisions of this chapter shall be effective for any act required to be done by the fiduciary and due on or after January 1, 1993; and that each existing limited guardian shall become a guardian or conservator as the case may be, with limited powers on January 1, 1993.

Amendments. The 2018 amendment added the definition of “least restrictive alternatives”.

The 2019 amendment added “, or qualified trustee as defined in § 35-16-102(12)(A);” at the end of the definition of “fiduciary”.

Effective Dates. Acts 2018, ch. 605, § 2. April 2, 2018.

Acts 2019, ch. 340, § 20. May 10, 2019.

Law Reviews.

A Quantum Leap for Ethical Guidance: Comparison of the Model Code and Rule 1.14 of the Proposed Rules of Professional Conduct (Donna S. Harkness), 35 No. 11 Tenn. B.J. 20 (1999).

Changes in Tennessee's Guardianship and Conservatorship Statute (Mary D. Colley and Colleen P. Mac Lean), 29 No. 1 Tenn. B.J. 14 (1993).

Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee (Tricia M. York), 36 U. Mem. L. Rev. 491 (2006).

Survey of the New Tennessee Guardianship and Conservatorship Act, 60 Tenn. L. Rev. (1993).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

Attorney General Opinions. A dependent or neglected child in the department of children's services' custody without termination of parental rights is not a “ward of the state” under Tennessee law, OAG 02-022, 2002 Tenn. AG LEXIS 14 (2/26/02).

NOTES TO DECISIONS

1. Constitutionality.

The very simple statutory procedure for contesting incompetency by the ward of a conservatorship affords adequate procedural due process, and the statutes do not unjustifiably restrict a ward's liberty in violation of substantive due process or the right to equal protection. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

An action challenging the constitutionality of conservatorship laws was within the public interest exception to the mootness doctrine and the case did not become moot when the conservatorship involved was dissolved. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

Trial court properly granted the Tennessee Department of Correction (TDOC) a limited conservatorship over an inmate and the authority to consent to forcible treatment on his behalf because the order was the least restrictive means of furthering TDOC's compelling interest; assuming the imposition of a limited conservatorship was governed by Tenn. Const. art. I, § 13, the practice was not unnecessary because there was significant evidence it was necessary to treat serious mental health issues. State Dep't of Corr. v. Todd, — S.W.3d —, 2017 Tenn. App. LEXIS 223 (Tenn. Ct. App. Mar. 31, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 518 (Tenn. Aug. 17, 2017).

2. Federal Law.

State conservatorship statutes do not run afoul of the federal Americans with Disabilities Act since state action under such laws does not discriminate against wards in the context of the federal statute. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

3. Due Process.

Prison inmate, forcibly administered drugs, failed to state a claim for violation of his due process rights under the fourteenth amendment where the inmate had been adjudicated incompetent and incapable of giving informed consent to medical treatment, and a limited guardian was appointed for that very purpose. Holley v. Deal, 948 F. Supp. 711, 1996 U.S. Dist. LEXIS 18165 (M.D. Tenn. 1996).

4. Disabled Person.

For the purposes of T.C.A. §§ 34-1-126 and 34-1-101(7), the record contained clear and convincing evidence that the widow was a disabled person who was in need of a conservator's supervision, protection, and assistance because the medical and psychological testimony, coupled with the lay testimony, painted a clear and compelling picture that the elderly widow's functional and decision-making capacities were significantly impaired and that the widow's mental state was on deteriorating course with no reasonable prospect for improvement; thus, a conservator or conservators for the widow was appropriate along with an order defining their duties. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

Trial court properly granted the Tennessee Department of Correction a limited conservatorship over an inmate and the authority to consent to forcible treatment on his behalf because the inmate suffered from a mental illness and experienced significant mental health issues that were ameliorated by appropriate treatment; due to the lack of a transcript, the record on appeal contained no evidence of the actual side effects the inmate experienced or that he was likely to experience. State Dep't of Corr. v. Todd, — S.W.3d —, 2017 Tenn. App. LEXIS 223 (Tenn. Ct. App. Mar. 31, 2017), review denied and ordered not published, — S.W.3d —, 2017 Tenn. LEXIS 518 (Tenn. Aug. 17, 2017).

Trial court in a conservatorship action properly appointed the ward's spouse as the conservator because clear and convincing supported the finding that the ward was fully disabled and in need of a conservator as a doctor opined in a physician's report that, based upon the ward's medical history and nature and type of disability, the ward was in need of a conservator and was incapable of managing the ward's own financial affairs and health care decisions. Another evaluator recommended the ward's admission to a long-term memory care facility. In re Williams, — S.W.3d —, 2018 Tenn. App. LEXIS 190 (Tenn. Ct. App. Apr. 11, 2018).

5. Hearings.

Where a comatose veteran's wife was appointed conservator of the estate and person of her husband, the trial court erred in denying her an appropriate hearing on her petition to remove a bank as co-conservator and to retain control over the medical malpractice litigation that she had filed on behalf of her husband in federal court. AmSouth Bank v. Cunningham, 253 S.W.3d 636, 2006 Tenn. App. LEXIS 144 (Tenn. Ct. App. Feb. 27, 2006).

6. Conservator.

Judgment ordering a partial conservatorship was affirmed because the trial court made an independent best interest determination and there was clear and convincing evidence in the record to support the finding that the appointment of a conservator was in appellant's best interest; appellant was disabled and in need of assistance. Lawton v. Lawton, 384 S.W.3d 754, 2012 Tenn. App. LEXIS 390 (Tenn. Ct. App. June 15, 2012), appeal denied, In re Lawton, — S.W.3d —, 2012 Tenn. LEXIS 692 (Tenn. Sept. 19, 2012).

34-1-102. Parents as joint and equal natural guardians of minors — Custody of minors — Support of minors over eighteen (18) years of age in high school — Property of minor — Incapacity of parents — Divorce — Commitment of guardianship to county — Guardianship instrument.

Parents are the joint natural guardians of their minor children, and are equally and jointly charged with their care, nurture, welfare, education and support and also with the care, management and expenditure of their estates. Each parent has equal powers, rights and duties with respect to the custody of each of their minor children and the control of the services and earnings of each minor child; provided, that so much of the net income of each minor child as may be necessary may be expended by a parent (without the necessity of court authorization) for the child's care, maintenance and education. Funds of a minor held by a guardian shall not be expended to relieve or minimize the obligation of the parent or parents to support the minor.
Parents shall continue to be responsible for the support of each child for whom they are responsible after the child reaches eighteen (18) years of age if the child is in high school. The duty of support shall continue until the child graduates from high school or the class of which the child is a member when the child attains eighteen (18) years of age graduates, whichever occurs first.
If either parent dies or is incapable of acting, the guardianship of each minor child shall devolve upon the other parent.
If the parents of a minor child are divorced, the court may award the guardianship of the property of the minor child to the parent who, in the court's judgment, would best serve the welfare of the minor child and the child's estate. The parent appointed guardian of the child's estate may, but does not have to be, the parent with legal custody. The appointment of a parent as legal guardian does not affect the custodial decree of the divorce court except in those situations in which the guardianship of the minor or legal custody is committed to the department of children's services, in which case the order of the court having jurisdiction of the guardian proceedings or custodial proceedings under title 37 shall control.

Acts 1992, ch. 794, § 3; 1996, ch. 1079, § 67; T.C.A. § 34-11-102.

Cross-References. Decree for support of children, § 36-5-101.

Juvenile courts and proceedings, parents' liability for support, § 37-1-151.

Public administrators and public guardians, title 30, ch. 1, part 4.

Public guardianship for the elderly, title 34, ch. 7.

School age and attendance, § 49-6-3001.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), § 1039.

Law Reviews.

Parent's Cause of Action in Tennessee for Injured Child's Lost Earnings and Services, Expenses, and Lost Society; A Comparative Analysis (Steven W. Feldman), 51 Tenn. L. Rev. 83 (1983).

NOTES TO DECISIONS

1. Custody.

Mere financial advantage is not the determining factor in awarding custody of a child since test is what is for the best interests of the child. Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627, 1949 Tenn. LEXIS 356 (1949), overruled in part, Hass v. Knighton, 676 S.W.2d 554, 1984 Tenn. LEXIS 915 (Tenn. 1984).

2. —Rights of Parents.

There is, under the modern law, no absolute right in the parent to the custody of his own child. Stubblefield v. State, 171 Tenn. 580, 106 S.W.2d 558, 1937 Tenn. LEXIS 140 (1937).

A parent's right to the custody of his own child is paramount, other considerations being equal. Stubblefield v. State, 171 Tenn. 580, 106 S.W.2d 558, 1937 Tenn. LEXIS 140 (1937).

3. —Rights of Intervening Parties.

Intervenors not related to parties in divorce proceeding were entitled to custody of middle child though mother was awarded oldest and youngest child where evidence showed that neither parent wanted the child which had won a spot in the hearts of the intervenors by virtue of his own personality. Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627, 1949 Tenn. LEXIS 356 (1949), overruled in part, Hass v. Knighton, 676 S.W.2d 554, 1984 Tenn. LEXIS 915 (Tenn. 1984).

4. —Review.

Appellate court in reviewing custody cases should not determine same on whether the trial court's decision is supported by weight of the evidence but should review case de novo by considering what is for the best interests of the child though determination by trial court is entitled to great weight. Smith v. Smith, 188 Tenn. 430, 220 S.W.2d 627, 1949 Tenn. LEXIS 356 (1949), overruled in part, Hass v. Knighton, 676 S.W.2d 554, 1984 Tenn. LEXIS 915 (Tenn. 1984).

5. Support.

After divorce a mother cannot be required to contribute to the support of minor children whose custody has been placed in the father. Hilton v. Hilton, 62 Tenn. App. 480, 463 S.W.2d 955, 1970 Tenn. App. LEXIS 325 (Tenn. Ct. App. 1970).

By lowering the age of majority from 21 to 18 years of age, the general assembly completely emancipated such persons from the control of the parents and relieved the parents of their legal duty of support. Garey v. Garey, 482 S.W.2d 133, 1972 Tenn. LEXIS 353 (Tenn. 1972).

The divorced father's obligation to support the child included medical and funeral expenditures. In re Shumate, 39 B.R. 808, 1984 Bankr. LEXIS 5780 (Bankr. E.D. Tenn. 1984).

The “class of which the child is a member” is the class of which the child happens to be a member on the child's 18th birthday. Stevens v. Raymond, 773 S.W.2d 935, 1989 Tenn. App. LEXIS 234 (Tenn. Ct. App. 1989).

T.C.A. § 37-1-151(b) unambiguously required a trial court to set child support retroactive to the date a child was placed in state custody, the statute did not include any limitation on the length of time for which retroactive support could be due, and a trial judge had no discretion to deviate from the statutorily imposed period of retroactive support; moreover, this requirement was consistent with other statutes defining the obligations of parents to their children, under Tennessee law every parent was obligated to support his or her child during their minority. State v. Wilson, 132 S.W.3d 340, 2004 Tenn. LEXIS 329 (Tenn. 2004).

Trial court erred in concluding that a mother had breached a marital dissolution agreement by declining to pay her son's college expenses after discovering that the father and the son had concealed a tuition discount received as a result of the father's employment at the university where the son was enrolled; the conduct of the father and the son excused the mother of further performance of her contractual obligations. Lopez v. Taylor, 195 S.W.3d 627, 2005 Tenn. App. LEXIS 837 (Tenn. Ct. App. 2005).

Father's duty of support to his children did not end upon the death of the children's mother; furthermore, this obligation existed with or without the mandate of a court order. Kirkpatrick v. O'Neal, 197 S.W.3d 674, 2006 Tenn. LEXIS 602 (Tenn. 2006).

Child support provision of a marital dissolution agreement (MDA) in which the father agreed to pay, inter alia, twenty-one percent of all bonuses or other income as defined by the child support guidelines was subject to modification because, when the trial court approved the agreement and incorporated the MDA into the final decree of divorce, the twenty-one percent provision merged into the divorce decree, lost its contractual nature, and thus became subject to modification by the trial court. Kesser v. Kesser, 201 S.W.3d 636, 2006 Tenn. LEXIS 693 (Tenn. 2006), superseded by statute as stated in, Moore v. Moore, 254 S.W.3d 357, 2007 Tenn. LEXIS 778 (Tenn. Sept. 5, 2007).

Any agreement between parents regarding the payment of child support of a minor child is within the legal obligation to support the minor child, and therefore is subject to court modification once the agreement is merged into a divorce decree. Kesser v. Kesser, 201 S.W.3d 636, 2006 Tenn. LEXIS 693 (Tenn. 2006), superseded by statute as stated in, Moore v. Moore, 254 S.W.3d 357, 2007 Tenn. LEXIS 778 (Tenn. Sept. 5, 2007).

Trial court ordered the amount of child support provided in the child support guidelines, and there was no countervailing evidence to indicate that the guidelines were improperly applied. In re Lucius H., — S.W.3d —, 2016 Tenn. App. LEXIS 817 (Tenn. Ct. App. Oct. 31, 2016), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 71 (Tenn. Jan. 19, 2017).

While the benefits the father received under the Longshore and Harbor Workers' Compensation Act were not subject to levy, execution, or collection of a debt, nothing in the Act prevents them from being considered as assets that the father could use to pay child support; the father had the ability to pay child support despite that he was unable to work, his funds had been shielded only by his discretion and that of his trustee, and the father had a duty to support his child under T.C.A. § 34-1-102. State ex rel. Bass v. Gonzalez-Perez, — S.W.3d —, 2017 Tenn. App. LEXIS 334 (Tenn. Ct. App. May 19, 2017).

Juvenile court did not abuse its discretion by denying a father's request to deviate from the presumption that he was responsible for child support back to the date of the child's birth because it applied the correct legal standard; the juvenile court cited T.C.A. § 36-2-311(a)(11)(B), which discussed deviation from a presumptive award of full retroactive support in paternity cases, and it found the father failed to establish the equity between the parties justified a deviation. Parrish v. Griggs, — S.W.3d —, 2017 Tenn. App. LEXIS 350 (Tenn. Ct. App. May 25, 2017), appeal denied, — S.W.3d —, 2017 Tenn. LEXIS 644 (Tenn. Oct. 5, 2017).

It was incumbent on a trial court to fashion a child support order based on the parties' incomes because the parents were statutorily obligated to support their child until the child reaches eighteen years of age, or graduated from high school, whichever occurred later. Alattiyat v. Qasqas, — S.W.3d —, 2017 Tenn. App. LEXIS 739 (Tenn. Ct. App. Nov. 9, 2017).

6. —Joint Obligation of Parents.

The obligation of both parents to provide support for their child is equal and joint, insofar as the child is concerned. Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654, 1933 Tenn. LEXIS 88 (1933).

The obligation previously resting upon the father to support his minor child has not been destroyed by this statute. That obligation is joint so far as the child is concerned, but a controversy between the parents as to contribution of each is to be determined by equitable principles, having due regard to the condition and means of each. Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654, 1933 Tenn. LEXIS 88 (1933).

Under this section the obligation for the support of a minor child is no longer primarily charged upon the father, but the father and mother are equally and jointly charged with the child's care, nurture, welfare, education and support. Rose Funeral Home, Inc. v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 1940 Tenn. LEXIS 98, 131 A.L.R. 858 (1940).

Agreement of the mother to perform her statutory duty with reference to the child does not discharge the father's statutory obligation. Rose Funeral Home, Inc. v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 1940 Tenn. LEXIS 98, 131 A.L.R. 858 (1940).

Divorced husband was liable to divorced wife for one half of daughter's college expenses where it appeared that husband was successful business man. Atchley v. Atchley, 29 Tenn. App. 124, 194 S.W.2d 252, 1945 Tenn. App. LEXIS 113 (Tenn. Ct. App. 1945).

Where statute imposes equally on husband and wife duty of supporting children, wife was not a volunteer when she supported children upon husband's failure and is not, as such, prevented from recovering from husband for such support furnished children. Cline v. Cline, 37 Tenn. App. 696, 270 S.W.2d 499, 1954 Tenn. App. LEXIS 101 (Tenn. Ct. App. 1954).

Under this section the mother and father remain equally and jointly charged with the care, nurture, welfare, education and support of their minor children after a divorce decree awarding the custody of such children to the mother, and any dispute between them as to the proper apportionment of expenses in that connection may be settled by the courts of this state under equitable principles. Schwalb v. Schwalb, 39 Tenn. App. 306, 282 S.W.2d 661, 1955 Tenn. App. LEXIS 71 (Tenn. Ct. App. 1955), superseded by statute as stated in, Moore v. Moore, — S.W.2d —, 1991 Tenn. App. LEXIS 869 (Tenn. Ct. App. Nov. 1, 1991).

7. —Rights of Child.

Where a divorce decree awarding custody of the child to the mother provides that the father shall contribute to its maintenance, such decree relates merely to the relative rights and duties of the parents toward each other and the child's rights against the father are not affected. Rose Funeral Home, Inc. v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 1940 Tenn. LEXIS 98, 131 A.L.R. 858 (1940).

Chancellor in divorce proceeding wherein mother was given custody of 15 year old child properly required father to deed property to child for her support and maintenance though she was not a party to proceeding, since mother as guardian of the child was before the court. Cline v. Cline, 186 Tenn. 509, 212 S.W.2d 361, 1948 Tenn. LEXIS 571 (1948).

Plaintiff, a resident of Tennessee, was entitled to garnish wages earned in Tennessee by defendant, a resident of Alabama, though plaintiff had secured a divorce in Alabama with a decree of $20 a month for support of minor children, where garnishment suit was for purpose of reimbursing plaintiff for medical expenses for children, since divorce decree did not discharge obligation of defendant for cost of emergency services, hence cause of action arose in Tennessee. Merrill v. Merrill, 188 Tenn. 10, 216 S.W.2d 705, 1948 Tenn. LEXIS 486, 7 A.L.R.2d 488 (1948).

8. —Suits to Recover Support.

Mother's suit for child's future support cannot be maintained in an independent suit by mother in her own name and right. The right to sue as next friend in the right of the child reserved. Brooks v. Brooks, 166 Tenn. 255, 61 S.W.2d 654, 1933 Tenn. LEXIS 88 (1933).

9. —Post-Majority Support.

Fact that the mother of a deceased child agreed to pay the funeral expenses did not bar a suit by the funeral home against the divorced father. Rose Funeral Home, Inc. v. Julian, 176 Tenn. 534, 144 S.W.2d 755, 1940 Tenn. LEXIS 98, 131 A.L.R. 858 (1940).

Under Tennessee state law, standing alone, there is no statutory duty to support a child after the age of majority, and any duty to provide post-majority support is purely contractual in nature. Binder v. Prager (In re Prager), 181 B.R. 917, 1995 Bankr. LEXIS 909 (Bankr. W.D. Tenn. 1995).

Duration provision of a Hawaii divorce decree, obligating the father to support the children until they reached the age of 23 or graduated from college, became a binding contract when the parties agreed to enroll it as part of the July 2009 agreed order. Since the father stated no basis for modifying or terminating his child support obligation, the trial court erred in granting his motion to modify the duration of child support even though it obligated the father to pay support beyond the age of majority. Johnston v. Harwell, — S.W.3d —, 2013 Tenn. App. LEXIS 464 (Tenn. Ct. App. July 16, 2013), appeal denied, Johnston v. Johnston, — S.W.3d —, 2013 Tenn. LEXIS 905 (Tenn. Nov. 18, 2013).

It was not error not to make a modification of a father's child support obligation for a child retroactive to the child's high school graduation because the record showed the father expressly intended to support the child after graduation. Blankenship v. Cox, — S.W.3d —, 2014 Tenn. App. LEXIS 219 (Tenn. Ct. App. Apr. 17, 2014).

Trial court erred in determining that the father was permitted to reduce his child support payments without court order when the parties' eldest child attained the age of 18 and graduated from high school where the parties' marital dissolution agreement, which was incorporated into the final decree of divorce, unambiguously obligated the father to pay child support as agreed and without reduction unless and until his obligation was modified by court order. Wunder v. Wunder, — S.W.3d —, 2014 Tenn. App. LEXIS 851 (Tenn. Ct. App. Dec. 22, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 319 (Tenn. Apr. 10, 2015).

10. Parties to Suits.

Father could maintain suit under § 20-1-105 for expenses incurred in payment of medical expenses resulting from injury of minor son in automobile accident and was not required to join mother as party plaintiff under the provisions of this section. Whitley v. Hix, 207 Tenn. 683, 343 S.W.2d 851, 1961 Tenn. LEXIS 386 (1961).

Grant of a partial summary judgment in favor of the passenger was improper because, although the father was a head of the household and he maintained the vehicle for the purpose of providing pleasure or comfort for the family, a genuine issue of material fact remained as to whether the father had sufficient control over the vehicle. He was the head of household because he had a family relationship with the son and had a duty to support him; the father's duty of support derived from T.C.A. § 34-1-102(a), which provided that parents were the joint natural guardians of their minor children, and were equally and jointly charged with their care. Starr v. Hill, 353 S.W.3d 478, 2011 Tenn. LEXIS 767 (Tenn. Aug. 31, 2011).

11. Actions for Injury.

Where the mother has exclusive custody and is entitled to the services of the child injured in an automobile accident, a prior judgment against the father for damages arising out of the same accident does not affect the cause of action of the mother for loss of services and expenses. Boring v. Miller, 215 Tenn. 394, 386 S.W.2d 521, 1965 Tenn. LEXIS 627 (1965).

12. Visitation Rights.

Absent any statutory right establishing a third-party's right of visitation, parents retain the right to determine with whom their children associate. White v. Thompson (In re Thompson), 11 S.W.3d 913, 1999 Tenn. App. LEXIS 629 (Tenn. Ct. App. 1999).

The Tennessee legislature has not conferred upon one who is a nonparent who is not and has not been married to either of the children's parents, but who previously maintained an intimate relationship with such a parent and who previously provided care and support to the children, any right of visitation. White v. Thompson (In re Thompson), 11 S.W.3d 913, 1999 Tenn. App. LEXIS 629 (Tenn. Ct. App. 1999).

13. Emancipation.

Once a child reaches the age of majority there was a complete emancipation of the minor from the bonds of parental control and at the time of complete emancipation the parents' legal duty to support the child was terminated. Garey v. Garey, 482 S.W.2d 133, 1972 Tenn. LEXIS 353 (Tenn. 1972).

14. Security of Testamentary Trustee.

Where the testator thinks fit to repose a trust, without security, the courts will not interfere and require security without a breach of trust, or at least a tendency thereto. Bowling v. Scales, 2 Cooper's Tenn. Ch. 63 (1874).

The property will not be taken from the custody of trustee, acting without security, unless a breach of trust, or a tendency thereto, is shown. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

15. Court Control of Guardianship.

The chancery court has jurisdiction to require a testamentary trustee for testator's minor children to file inventories, make settlements, and administer the trust under its direction. This jurisdiction may be invoked by, and exercised at the instance of, either the trustee or the beneficiaries. Bowling v. Scales, 2 Cooper's Tenn. Ch. 63 (1874) (exercising the jurisdiction to appoint a receiver until final hearing); Caruthers v. Caruthers, 70 Tenn. 264, 1879 Tenn. LEXIS 173 (1879).

16. Custody of Wards.

The testamentary guardian has the legal right to the custody and possession of his wards, but this legal right, without being impaired, will be given to another in a case where the interest of the wards obviously requires that it should be done. Ward v. Roper, 26 Tenn. 111, 1846 Tenn. LEXIS 71 (1846).

17. Removal of Guardian.

The court may remove a testamentary guardian in case of insolvency, wasting of the estate, intended removal, mismanagement, intended disparagement in marriage, or other sufficient cause. Massingale v. Hale, 5 Tenn. 30 (1817).

18. Trial Procedure.

Trial court in a guardianship proceeding for children upon the death of one the children's parents erred in awarding a maternal grandparent guardianship of the surviving parent's biological children because the court did not first determine that there would have been a substantial risk of harm to the children should the surviving parent have been appointed guardian. In re Taylour L., — S.W.3d —, 2015 Tenn. App. LEXIS 42 (Tenn. Ct. App. Jan. 29, 2015).

Collateral References.

Appointment of conservator or guardian, priority and preference. 65 A.L.R.3d 991.

Extrinsic evidence to identify person whom testator intended to designate as guardian. 94 A.L.R. 127.

Function, power, and discretion of court where there is testatmentary appointment of guardian of minor. 67 A.L.R.2d 803.

Guardian de facto or de son tort of minor. 25 A.L.R.2d 752.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest. 69 A.L.R.3d 1198.

Infant's property, right of natural guardian to custody or control of. 6 A.L.R. 115.

Minority of parent as affecting right to guardianship of child. 19 A.L.R. 1043.

Parent's power to appoint testamentary guardian for adult imbecile child. 24 A.L.R. 1458.

Parents' rights and duties as affected by appointment of guardian for infant. 63 A.L.R. 1147.

Parent's use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights. 20 A.L.R.5th 534.

Validity and construction of statutes making parents liable for torts committed by their minor children. 8 A.L.R.3d 612.

What voluntary acts of child, other than marriage or entry into military service, terminate parent's obligation to support. 55 A.L.R.5th 557.

Who is minor's next of kin for guardianship purposes. 63 A.L.R.3d 813.

Who may make election for incompetent to take under or against will. 21 A.L.R.3d 320.

Woman's right to have abortion without consent of, or against objections of child's father. 62 A.L.R.3d 1097.

34-1-103. Duties of department of children's services when no natural guardian, or child abandoned.

When there is no natural guardian of a minor or when a minor has been abandoned and if the minor requires service from the department of children's services, the duly authorized agent of the commissioner of children's services of the county in which the minor resides may act as the custodian of the person of the minor with the powers as enumerated in § 37-1-140, until a guardian is appointed.
The guardianship of the minor may be committed to the duly authorized agent of the commissioner by an instrument in writing signed:
1. If both parents are then living, by the parents of the child or, if either parent of the child is dead, by the surviving parent;
2. If either one (1) of the parents has abandoned or neglected to provide for the minor for a period of six (6) months, by the other parent; or
3. If the minor is born out of wedlock, by the mother of such minor.
The guardianship shall be in accordance with this section and the instrument shall be upon the terms, time and conditions agreed upon by the parties.
The instrument shall be:
1. Signed;
2. Acknowledged before a notary public or county clerk; and
3. Recorded in the office of the county clerk in the county where the instrument is executed, where the minor is residing, or where the county office of the department of children's services is located.

Acts 1992, ch. 794, § 4; 1996, ch. 1079, §§ 67, 68; T.C.A. § 34-11-103.

Cross-References. Infant prematurely born alive during abortion declared abandoned child, custody, § 39-15-207.

NOTES TO DECISIONS

1. Power of State.

The state has the constitutional power to act for incompetents and for partial incompetents to the extent of the partial incompetency. State, Dep't of Human Services v. Northern, 563 S.W.2d 197, 1978 Tenn. App. LEXIS 281 (Tenn. Ct. App. 1978), dismissed, Northern v. Department of Human Resources, 436 U.S. 923, 98 S. Ct. 2816, 56 L. Ed. 2d 767, 1978 U.S. LEXIS 1975 (1978).

2. Appointment of Conservator.

3. Spouse.

34-1-104. Letters of guardianship or conservatorship — Disposition of funds of minor under $25,000 — Discharge of paying entities — Order of distribution — Distribution of funds — Direction of funds into trust.

Except as provided in subsections (b)-(d), no person shall undertake the administration of the estate of a minor or person with a disability until the person has been issued letters of guardianship or letters of conservatorship; provided, that no guardian or conservator shall be appointed if the property of the minor or person with a disability is deposited with the clerk of the court subject to distribution on order of the court. The letters of conservatorship shall either:
1. Recite the specific powers to be exercised by the conservator and the specific powers retained by the person with a disability; or
2. Have attached to them the order or orders of the court specifying the powers to be exercised by the conservator and the powers retained by the person with a disability.
If the total property of a minor or person with a disability does not exceed the sum of twenty-five thousand dollars ($25,000) and the court determines it is in the best interest of the minor or person with a disability, the court may order any person holding property belonging to the minor or person with a disability to deliver all or any part of the money or property, without the necessity of the appointment of a fiduciary, to the natural guardian or guardians of the minor or to the person with whom the minor or person with a disability resides or to the person with a disability. Notwithstanding any law to the contrary, if the guardians of the minor are the parents of the minor and are divorced or legally separated from each other, the court may order that the funds be delivered, all or in part, to either of the parents if the court finds that such order would best serve the welfare of the minor. The receipt by any of these persons of the money or property discharges the paying entity from further liability. To bring the matter before the court, any person may petition the court for an order of distribution. The petition shall set forth the information required by § 34-2-104 and § 34-3-104, except the petition shall request distribution according to this section instead of the appointment of a fiduciary. The court may appoint a guardian ad litem to assist it in determining the best interest of the minor or person with a disability.
In any judicial proceeding in which any fund or part of the fund is decreed to belong to a minor or person with a disability, or in which there is a recovery in favor of a minor or person with a disability, the court trying the case may retain the fund or recovery or part of the fund or recovery to be disbursed by the clerk and master or clerk of the court for the support, maintenance or education of the minor or person with a disability under the orders of the court; provided, that the fund or part of the fund or the amount of the recovery does not exceed the sum of twenty-five thousand dollars ($25,000) and the minor is without a legal guardian; and provided further, that the court, in its discretion, may direct the fund to be paid to the natural guardian of the minor or the other person having the care and custody of the minor or person with a disability to be applied for the support, maintenance or education of the minor or person with a disability, subject to such terms and conditions as the court may impose.
In a proceeding to determine letters of guardianship or conservatorship, the court shall be vested with the authority to direct any fund or part of the fund decreed to belong to a minor or person with a disability, or in which there is recovery in favor of a minor or person with a disability, into a trust created under the Tennessee Uniform Trust Code, compiled in title 35, chapter 15 with such fiduciary appointed upon order of the court according to this chapter.

Acts 1992, ch. 794, § 5; 1994, ch. 855, § 1; T.C.A. § 34-11-104; Acts 2008, ch. 958, § 1; 2008, ch. 1204, § 1; 2013, ch. 435, §§ 7, 46; 2019, ch. 197, §§ 1, 2; 2019, ch. 340, §§ 4, 5.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Amendments. The 2019 amendment by ch. 197, substituted “twenty-five thousand dollars ($25,000)” for “twenty thousand dollars ($20,000)” near the beginning of the first sentence of (b) and in the first proviso of (c).

The 2019 amendment by ch. 340, substituted “subsections (b)-(d)” for “subsections (b) and (c)” in the first sentence of the introductory paragraph of (a); and added (d).

Effective Dates. Acts 2019, ch. 197, § 8. April 25, 2019.

Acts 2019, ch. 340, § 20. May 10, 2019.

Cross-References. Shares of infants in partition sales, § 29-27-218.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 641.

Law Reviews.

Decedents' Estates, Trusts and Future Interests — 1961 Tennessee Survey (Herman L. Trautman), 14 Vand. L. Rev. 1253 (1961).

34-1-105. Bond.

1. Except as otherwise provided in subsection (b), bond shall be required of the fiduciary in an amount equal to the sum of the fair market value of all personal property and the amount of the anticipated income from all property, including the real property, for one (1) year. If the surety for the bond is posted by a corporate surety, the amount of the surety shall equal the amount of the bond. If the surety for the bond is posted by pledging property, the value of the unencumbered property posted shall be equal to one hundred fifty percent (150%) of the bond.
2. If the property pledged to secure the bond is personal property, the property shall be delivered to the clerk for safekeeping. If the property pledged to secure the bond is real property, notice of the pledge shall be recorded in the register's office of the county in which the real property is located.
3. The bond shall be renewed annually by the fiduciary. The court may adjust the amount of required bond to reflect changes in the value of the property of the minor or person with a disability. The surety's liability under the bond shall not be cumulative and shall not exceed the amount of the bond in force at the time of default.
In the discretion of the court, bond may be excused if the court makes a finding, which finding shall be stated in the order, that the requirement of bond would be unjust or inappropriate in that case and that one (1) of the following exists:
1. The fiduciary is a financial institution excused from the requirement of bond under § 45-2-1005;
2. The total fair market value of the minor's non-real estate property or the person with a disability's non-real estate property does not exceed the sum of ten thousand dollars ($10,000) and the court finds the benefit to the ward by saving the expense outweighs the risks incident to the absence of a bond;
3. The document naming the suggested or preferred fiduciary excuses the fiduciary from posting bond;
4. The property of the minor or person with a disability is placed with a financial institution and the fiduciary and the financial institution enter into a written agreement, filed with the court, in which the financial institution agrees it will not permit the fiduciary to withdraw the principal without court approval;
5. The property of the minor or person with a disability is deposited with the clerk and master or clerk of the court; or
6. The fiduciary is appointed fiduciary over the person of the minor or person with a disability but has not also been appointed as fiduciary over the person's estate.

Acts 1992, ch. 794, § 6; T.C.A. § 34-11-105; 2013, ch. 435, §§ 38, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Cross-References. Action on bond by party aggrieved, § 20-1-103.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

NOTES TO DECISIONS

1. In General.

A personal representative must settle his accounts as such personal representative before he can be appointed as guardian. Ezell v. Hamilton, 63 Tenn. 304, 1874 Tenn. LEXIS 248 (1874).

The statute contemplates an inquiry into the estate of the ward, with a view to determine the penalty of the bond, and to call the attention of the sureties to the probable extent of their liability. Pearson v. Dailey, 75 Tenn. 674, 1881 Tenn. LEXIS 166 (1881).

2. Formalities of Bond.

If the guardian's bond is informal and not according to the statute, as where it is made payable to the wrong payee, or the penalty is blank, relief will be granted the ward in chancery, by an account against the principal and sureties. Especially will relief be given in chancery where the sureties have taken indemnity by mortgage on the faith of their liability. Ferrell v. Dooly, 25 Tenn. 110, 1845 Tenn. LEXIS 35 (1845); Bumpas v. Dotson, 26 Tenn. 310, 1846 Tenn. LEXIS 132 (1846).

A guardian's bond with one surety is good and binding on him since the requirement of two or more sureties is merely directory, but the officer charged with the duty of taking the bond will be liable to the party aggrieved for the damages sustained, if in fact a loss occurred by reason of the failure to require the number of sureties fixed by the statute. Spears v. Smith, 77 Tenn. 483, 1882 Tenn. LEXIS 87 (1882).

3. Veteran's Guardianship Bond.

Where trust company as guardian of non compos war veteran was required to execute bond with solvent surety company as condition for payment by United States veteran's bureau of fund due veteran ward, and bond so obtained expressly provided that it did not supersede any other bond and was not to be construed as retroactive, chancellor erred in treating it as statutory bond which was merely defective because of recited limitations and in considering it as regularly conditioned to answer for guardian's defaults occurring either before or after its execution. Peoples Bank v. Elizabethton Trust Co., 23 Tenn. App. 288, 130 S.W.2d 989, 1939 Tenn. App. LEXIS 36 (Tenn. Ct. App. 1939).

4. Liability of Guardian.

A guardian is liable for failure to call his predecessor in office to account; but, in such case, where a recovery and satisfaction have been had against him, he is entitled to be subrogated to the rights of the wards against the first guardian; or, if he has satisfied the first guardian's deficiency, by the payment and satisfaction of the judgment against himself for his such failure to collect the same from the first guardian and his sureties, he may, by an order of court under the enlarged power of amendment conferred by statute, be substituted on the record as plaintiff in place of the wards in their pending suit against a surety of the first guardian. Smith v. Alexander, 36 Tenn. 482, 1857 Tenn. LEXIS 40 (1857).

Where a guardian, from improper motives, procures an advantageous sale of the property of the wards to be set aside for technical reasons avoiding it, against the will of the purchaser, and procures a resale at a loss, he will be held liable for the loss. Mountcastle v. Mills, 58 Tenn. 267, 1872 Tenn. LEXIS 258 (1872).

The guardian's regular or general bond covers the rents of his ward's land during the period held by him under a void judicial sale procured by himself, and at which he became the purchaser, where the sale has been annulled by the chancery court, and the land has been recovered by the wards. Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873).

Where a guardian, holding a check representing the funds of his wards, but payable to himself individually, deposited it to his personal credit in a bank, by the permission of its assistant cashier, after the guardian had informed him of the facts, both the guardian and the bank were guilty of a conversion of the fund, completed by the entry of the amount of the check to the guardian's personal credit, whereby the bank became a trustee of the fund, and could only be relieved from liability to account therefor by the guardian's subsequent true administration of the trust fund and his accounting therefor. United States Fidelity & Guaranty Co. v. People's Bank, 127 Tenn. 720, 157 S.W. 414, 1913 Tenn. LEXIS 17 (1913).

5. Liability of Sureties.

While the sureties on the guardian's bond will be released by the ward's acceptance, without their consent, of the guardian's note or order on a third party, after he is of age, for the payment of the amount due from the guardian to the ward. The mere drawing of orders on the guardian by the ward, in favor of third persons, which are accepted by him, does not operate as a discharge of the sureties unless such orders are paid. Bond v. Ray, 24 Tenn. 492, 1844 Tenn. LEXIS 117 (1844).

The sureties on a guardian's bond are not liable for money paid to the guardian, on account of the ward who, at the time of the payment, was of age. Shelton v. Smith, 62 Tenn. 82, 1873 Tenn. LEXIS 145 (1873).

Sureties on general bond executed in 1854 were not liable for proceeds received by guardian for sale of land, but sureties on renewal bond executed in 1861 subject to provisions of 1858 Code were liable for proceeds from sale of land in hands of guardian at time of execution. Shelton v. Smith, 62 Tenn. 82, 1873 Tenn. LEXIS 145 (1873).

The sureties are liable for only simple interest upon the amount of the guardian's liability after the termination of his guardianship by his death or otherwise. Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873).

Where a guardian, appointed in this state for a resident infant whose estate consisted of assets to come from another state, with no assets in this state, executed a bond in double the value of those assets of his ward, and the guardian and his sureties entered into their obligations with a view to those particular assets, the law will presume that the bond was executed with special reference to those assets, and the sureties on the bond will be held liable therefor. Pearson v. Dailey, 75 Tenn. 674, 1881 Tenn. LEXIS 166 (1881).

6. Actions on Bond.

An action will lie on a statutory bond without a previous account in equity, first ascertaining the extent of the guardian's liability, whether he is sued alone or jointly with his sureties, or they or a part of them are sued alone; or a bill may be filed in equity, not only for the accounting, but also to recover the amount found to be due. Justices of Franklin County v. Willis, 11 Tenn. 461, 1832 Tenn. LEXIS 94 (1832); Foster v. Maxey's Ex'rs, 14 Tenn. 223, 14 Tenn. 224, 1834 Tenn. LEXIS 65 (1834); Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873); Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

A bill for an account and settlement may be maintained against a surety of a deceased guardian alone, without making his personal representative a party defendant, especially where the insolvency of the deceased guardian's estate is alleged. Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877).

7. Rights of Sureties.

Where the sureties of a guardian have been made liable on his bond, they are entitled to his compensation, as settled by the court on his various settlements, as a credit on their liability. Sanders v. Forgasson, 62 Tenn. 249, 1873 Tenn. LEXIS 186 (1873).

The sureties of the guardian may maintain a bill against the guardian and ward to reach a fund converted by the defendant guardian and third persons made defendants and to have it applied to indemnify themselves (the sureties) before any liability has been fixed against them by judgment, where the insolvency of the guardian is alleged and shown. Davidson v. Crisp, 1 Shan. 261 (1873); Adams v. Gleaves, 78 Tenn. 367, 1882 Tenn. LEXIS 192 (1882).

While the sureties of a guardian are entitled to be subrogated to all the rights and remedies of the ward against the guardian (their principal), even before their payment of his default, where he (the guardian) is insolvent, yet the sureties stand no higher than the ward and take such remedies precisely as the ward could take them, that is, with all the equities and limitations existent against him. Adams v. Gleaves, 78 Tenn. 367, 1882 Tenn. LEXIS 192 (1882).

Surety of guardian, paying the wards, was entitled to be subrogated to the rights of the wards against a bank, guilty jointly with guardian of conversion of ward's funds, and to recover from it the total deposit, and not merely a small overdraft at the time of the making of the deposit. United States Fidelity & Guaranty Co. v. People's Bank, 127 Tenn. 720, 157 S.W. 414, 1913 Tenn. LEXIS 17 (1913).

A bank, sued as party to the principal's misappropriation, cannot complain that the surety, suing on the theory of subrogation to rights of the minor heirs as creditors, has not paid them, where the latter are in court acquiescing, and all the parties are protected by decree. American Surety Co. v. Grace, 151 Tenn. 575, 271 S.W. 739, 1924 Tenn. LEXIS 87 (1925).

8. Execution of Renewal Bond.

To constitute a regular biennial renewal bond, it is not required that it be executed exactly at the end of the two years. Any renewal at any time pending the guardianship, not made in conformity with a different order of court, is a renewal bond within the meaning of the statute. Crook v. Hudson, 72 Tenn. 448, 1880 Tenn. LEXIS 43 (1880).

Where the clerk had not signed the bond for the surety, but had attached to the bond the surety's letter of authorization, the bond was deemed by equity effectually executed. Williams v. Hollis, 14 Tenn. App. 374, — S.W.2d —, 1931 Tenn. App. LEXIS 49 (Tenn. Ct. App. 1931).

9. Liability on Renewal Bonds.

The new sureties on biennial renewal bonds are cumulative to the former sureties and they are all liable to the ward, the last sureties taken are first liable, and so in the inverse order in which the bonds were taken and the liability of each set of sureties extends not only to the future acts of the guardian, but relates to his first appointment, and is coextensive with the guardianship. Jamison v. Cosby & Ferguson, 30 Tenn. 273, 1850 Tenn. LEXIS 111 (1850); Collins v. Knight, 3 Cooper's Tenn. Ch. 183 (1876); Dibbrell v. Mitchell, 2 Shan. 591 (1877); Tennessee Hosp. v. Fuqua, 69 Tenn. 608, 1878 Tenn. LEXIS 144 (1878); Crook v. Hudson, 72 Tenn. 448, 1880 Tenn. LEXIS 43 (1880); Williams v. Hollis, 14 Tenn. App. 374, — S.W.2d —, 1931 Tenn. App. LEXIS 49 (Tenn. Ct. App. 1931); McCuiston v. Haggard, 21 Tenn. App. 277, 109 S.W.2d 413, 1937 Tenn. App. LEXIS 32 (Tenn. Ct. App. 1937).

The primary liability of the sureties on a biennial renewal bond is not altered by the fact that the guardian had misappropriated the ward's estate before its execution. The liability of such sureties is coextensive with the guardianship, and relates to the first appointment of the guardian. Crook v. Hudson, 72 Tenn. 448, 1880 Tenn. LEXIS 43 (1880).

New sureties on a guardianship bond are cumulative to former sureties and in an action on the bond for damages because of improper investments the fact that the investments were made before the defendant became a surety is no defense for such surety. McCuiston v. Haggard, 21 Tenn. App. 277, 109 S.W.2d 413, 1937 Tenn. App. LEXIS 32 (Tenn. Ct. App. 1937).

10. —Suits Against Sureties.

The different sets of sureties may all be sued together in a bill filed in the chancery court, and the court can render a decree against the sureties on the different bonds, and declare the order of their liability; or the different sets of sureties may be sued in so many different actions at law at the same time upon their respective bonds. The sureties may be sued with or without the principal. State use of Heirs of Howard v. Parker, 67 Tenn. 495, 1875 Tenn. LEXIS 73 (1875), overruled in part, Jackson v. Crutchfield, 111 Tenn. 394, 77 S.W. 776, 1903 Tenn. LEXIS 35 (1903); Collins v. Knight, 3 Cooper's Tenn. Ch. 183 (1876); Tennessee Hosp. v. Fuqua, 69 Tenn. 608, 1878 Tenn. LEXIS 144 (1878).

11. Liability on Additional Bonds.

Where an additional guardian bond is given because of the reception of additional funds, or because the existing bond is not deemed solvent by the court, and it orders other and better security to be given, such additional bond not being the regular biennial renewal bond, the sureties upon both bonds are equally liable as if they had all signed one bond; neither set of sureties can claim that one is liable before the other; and all are liable to contribute equally for the funds received by the guardian, and not accounted for. Johnson v. Johnson, 53 Tenn. 240, 1871 Tenn. LEXIS 349 (1871); Odom v. Owen, 61 Tenn. 446, 1873 Tenn. LEXIS 204 (1873); McGlothlin v. Wyatt, 69 Tenn. 717, 1878 Tenn. LEXIS 166 (1878).

12. Contribution Between Sureties.

Where the guardian executes a mortgage to indemnify his sureties, and afterwards makes his biennial renewal bond, with one of the former sureties and a new surety as sureties on it, the mortgage continues as an indemnity to such former surety against his continued liability, and through him as the holder of such collateral security, it inures to the benefit of his cosurety, the new surety, to the exclusion of other and general creditors of the mortgagor, though he be dead. Bobbitt v. Flowers, 31 Tenn. 511, 1852 Tenn. LEXIS 151 (1852).

Where one surety received from the guardian the trust funds in payment of the guardian's individual indebtedness to such surety, he is bound, in exoneration of his cosurety, to account for such trust fund, though the misappropriation was accomplished in pursuance of an agreement previously made between them, with the knowledge of the other surety who acquiesced in such misappropriation. Pile v. McCoy, 99 Tenn. 367, 41 S.W. 1052, 1897 Tenn. LEXIS 41 (1897).

Collateral References.

Accounting as necessary condition of action on bond. 119 A.L.R. 84.

Ancillary jurisdiction, transmission of fund from, to domiciliary jurisdiction, or liability of sureties on bond given in latter jurisdiction, as affecting liability of sureties on bond given in former jurisdiction. 78 A.L.R. 575.

Appeal taken by guardian, official bond as covering. 132 A.L.R. 1280.

Bank deposit in his own name or other form not indicating fiduciary character, liability of guardian for loss of. 43 A.L.R. 600.

Court order authorizing investment, liability in absence of mandatory statute, of guardian for loss of funds as affected by failure to obtain. 116 A.L.R. 437.

Court order authorizing the investment as affecting liability of guardian for loss of funds invested. 88 A.L.R. 325.

Deposit of funds in bank in form which discloses trust or fiduciary character, liability for loss of. 90 A.L.R. 641.

Depreciation in value of securities, liability for, as affected by appreciation of other securities. 171 A.L.R. 1422.

Leave of court as prerequisite to action on. 2 A.L.R. 569.

Liability of fiduciary for loss on investment as affected by fact that it was taken in his own name without indication of fiduciary capacity. 106 A.L.R. 271, 150 A.L.R. 805.

Limitation by agreement of guardian's control over funds or investments as affecting his liability. 102 A.L.R. 1108.

Mortgage investment, surchargeability of guardian in respect of, as affected by matters relating to value of property. 117 A.L.R. 871.

Terms of contract or form of signature, personal liability of guardian as affected by. 138 A.L.R. 155.

Ward's consent to, acquiescence in, or ratification of, improper investments or loans by guardian. 128 A.L.R. 4.

34-1-106. Petition for appointment of fiduciary.

The petition for the appointment of a fiduciary shall be served in accordance with the Tennessee Rules of Civil Procedure. The guardian ad litem appointed may serve the petition on the respondent.
Notice by certified mail with return receipt requested shall be given by the clerk of the court to the closest relative or relatives of the respondent required to be named in the petition and to the person, if any, having care or custody of the respondent, institution, or residential provider with whom the respondent is living.

Acts 1992, ch. 794, § 7; 1994, ch. 855, § 2; T.C.A. § 34-11-106; Acts 2007, ch. 8, § 7; 2013, ch. 435, § 8.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Application by Testamentary Guardian.

Although the statute requires the regular guardian of an infant to make the application for the sale of the infant's lands, a sale contracted by a testamentary guardian without authority, and afterwards confirmed as an advantageous one by a decree rendered in a suit brought by such testamentary guardian against his ward for that purpose, is valid even upon direct attack. Hurt v. Long, 90 Tenn. 445, 16 S.W. 968, 1891 Tenn. LEXIS 29 (1891).

2. Application by Husband.

A husband may file a bill for the sale and reinvestment of the proceeds of his infant wife's realty. McNish v. Bryan, 2 Tenn. Civ. App. (2 Higgins) 443 (1911).

3. Application of Purchaser.

A bill for an infant's benefit to sell real estate for maintenance and education should be filed by some person with the infant's interest at heart, and should not be entertained when filed by one desiring to purchase the infant's land. Reynolds v. Chumbley, 175 Tenn. 496, 135 S.W.2d 941, 1939 Tenn. LEXIS 67 (1940).

4. Appointment of Guardian Ad Litem.

The guardian ad litem required by this section may be appointed by the clerk and master, as in other cases. Beaumont v. Beaumont, 54 Tenn. 226, 1872 Tenn. LEXIS 39 (1872).

Appointment of guardian ad litem by deputy, when the clerk is complainant, if the chancellor afterwards ratifies the appointment by permitting him to act as the representative of the infant, may not be assigned as error, if it is an irregularity. Hurt v. Long, 90 Tenn. 445, 16 S.W. 968, 1891 Tenn. LEXIS 29 (1891).

If interest of guardian and ward is likely to be adverse, another should be appointed guardian ad litem. Freeman v. Citizens' Nat'l Bank, 167 Tenn. 399, 70 S.W.2d 25, 1933 Tenn. LEXIS 54 (1934).

The purpose of appointing a guardian ad litem is to protect the incompetent in the particular litigation wherein the appointment is made. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

Although appointment of guardian ad litem can only be made after the incompetent has been brought before the court, where the court has jurisdiction over the property this may be done by publication as well as service of process. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

In proceedings to sell land of allegedly mentally incompetent person in the interest of the incompetent, an adjudication of insanity in a lunacy proceeding was not required as a prerequisite to the appointment of a guardian ad litem. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

5. Application by Guardian Ad Litem.

A guardian ad litem cannot file a bill to sell land for benefit of an infant. Browning v. Browning, 79 Tenn. 106, 1883 Tenn. LEXIS 20 (1883).

6. Application by Next Friend.

In proceedings to sell land of allegedly mentally incompetent person in the interest of the incompetent, petition of next friend seeking to intervene was properly dismissed where the alleged incompetent was already represented by a guardian ad litem and the petition of the next friend disclosed that she was not acting exclusively in the interest of the alleged incompetent. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

7. Collateral Attack.

A collateral attack on a proceeding in a suit to sell realty because not in accordance with the provisions of this section was not sustained. Covington v. Bullefin, 1 Tenn. App. 603, — S.W. —, 1925 Tenn. App. LEXIS 80 (Tenn. Ct. App. 1925).

In proceedings by administrator of estate for partition and sale of land for payment of debts of estate and also in interest of allegedly incompetent co-owner, degree of chancery court approving the sale would not be void so as to be subject to attack by creditor of estate on ground that bill was multifarious or subject to criticism for other technical grounds. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

8. Validity of Sale.

Even if this section should require that a suit in chancery for the sale of the property of an incompetent be instituted by a general guardian, a sale made at the insistence of someone other than the guardian would not be void. Goins v. Yowell, 41 Tenn. App. 280, 293 S.W.2d 251, 1956 Tenn. App. LEXIS 167 (Tenn. Ct. App. 1956).

9. Procedure.

In a conservatorship proceeding where the brother-in-law sought to be appointed conservator over the elderly widow, in the absence of evidence to the contrary, the appellate court presumed that the petition was served upon the widow and that the trial court clerk notified the widow's closest relatives as required by T.C.A. § 34-1-106. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

Collateral References.

Appointment of conservator or guardian, priority and preference. 65 A.L.R.3d 991.

34-1-107. Guardian ad litem.

1. The court may appoint a guardian ad litem in any proceeding and, except as provided in this section, shall appoint a guardian ad litem on filing of a petition for appointment of a fiduciary. If the respondent is represented by counsel who has made an appearance for the respondent, the court may appoint or continue the services of a guardian ad litem or may waive appointment or terminate the services of a guardian ad litem in the best interests of the respondent.
2. The court may waive the appointment of a guardian ad litem if the petitioner or at least one (1) of the petitioners for the appointment is:
  1. A parent of the minor for whom a guardian is sought;
  2. A minor who has attained fourteen (14) years of age; or
  3. An adult respondent.
3. The court may waive the appointment of a guardian ad litem if the court determines the waiver is in the best interests of the minor or person with a disability.
If the guardian ad litem is to be appointed, the appointment shall be made no later than ten (10) days from the date the petition for the appointment of the fiduciary was filed.
The person appointed guardian ad litem shall be a lawyer licensed to practice in the state of Tennessee. If there are insufficient lawyers within the court's jurisdiction for the appointment of a lawyer as guardian ad litem, the court may appoint a nonlawyer.
1. The guardian ad litem owes a duty to the court to impartially investigate the facts and make a report and recommendations to the court. The guardian ad litem serves as an agent of the court, and is not an advocate for the respondent or any other party.
2. In each proceeding, the guardian ad litem shall:
  1. Verify that the respondent and each other person required to be served or notified was served or notified;
  2. Consult with the respondent in person as soon as possible after appointment;
  3. If possible, explain in language understandable to the respondent the:
    1. Substance of the petition;
    2. Nature of the proceedings;
    3. Respondent's right to protest the petition;
    4. Identity of the proposed fiduciary; and
    5. Respondent's rights as set forth in § 34-3-106; and
  4. Make a report and recommendations to the court concerning the issues of:
    1. Whether a fiduciary should be appointed for the respondent;
    2. If a fiduciary should be appointed, whether the proposed fiduciary is the appropriate person to be appointed; and
    3. Any other matters as directed by the court.
3. In a proceeding for the appointment of a conservator, the guardian ad litem shall investigate the physical and mental capabilities of the respondent. The guardian ad litem's investigation shall include:
  1. An in-person interview with the respondent; and
  2. A review of the sworn report required by § 34-3-105 to verify that the sworn statement contains:
    1. A detailed description of the respondent's physical or mental conditions or both that may render the respondent a person with a disability; and
    2. A detailed description of how the respondent's physical or mental conditions or both may impair the respondent's ability to function normally.
4. In a proceeding seeking the appointment of a fiduciary to manage the respondent's property, the guardian ad litem shall investigate the:
  1. Nature and extent of the respondent's property; and
  2. Financial capabilities and integrity of the proposed fiduciary. In evaluating the financial capabilities of the proposed fiduciary, the guardian ad litem may take such actions as directed by the court and as the guardian ad litem deems necessary, which may include but are not limited to:
    1. Obtaining and reviewing the proposed fiduciary's credit report;
    2. Inquiring into whether and to what extent the proposed fiduciary has previous experience in managing assets of the same or similar type and value as the respondent's assets;
    3. Inquiring into how the proposed fiduciary plans to manage the respondent's assets;
    4. Inquiring into whether the proposed fiduciary has previously borrowed funds from the respondent or received any financial assistance or benefits from the respondent; and
    5. Interview any persons with knowledge and review any documents pertinent to the financial capabilities and integrity of the proposed fiduciary.
The order appointing the guardian ad litem shall authorize the guardian ad litem access to records of the respondent in any financial institution and to review medical records, and permit the guardian ad litem to discuss the respondent's physical and mental conditions with any physician, psychologist or other health care provider who may have pertinent information.
The guardian ad litem shall make a written report to the court at least three (3) days prior to the date set for hearing the matter, which time period may be waived in the judge's discretion. The written report shall provide the court with the results of the guardian ad litem's investigation. The guardian ad litem's report shall specifically state whether:
1. 1. The respondent wants to contest:
    1. The need for a fiduciary;
    2. Merely the person to be the fiduciary; or
    3. Neither;
  2. If the respondent wants to contest any portion of the proceeding and the guardian ad litem's opinion is that there should be a fiduciary appointed, the guardian ad litem shall identify the adversary counsel or indicate there is none and request the appointment of an attorney ad litem;
2. A fiduciary should be appointed and, if so, whether:
  1. The proposed fiduciary should be appointed; or
  2. Someone else, identified by the guardian ad litem, should be appointed;
3. The proposed property management plan should be adopted and, if not, what changes should be considered.
4. The respondent will attend the hearing and, if, in the opinion of the guardian ad litem, it is not in the respondent's best interest to attend, why.
Unless the court orders otherwise, the guardian ad litem has no continuing duty once an order has been entered disposing of the petition that caused the guardian ad litem's appointment.
When investigating financial records of a respondent, the guardian ad litem shall be the customer within the meaning set forth in title 45, chapter 10, known as the Financial Records Privacy Act.

Acts 1992, ch. 794, § 8; T.C.A. § 34-11-107; Acts 2004, ch. 771, § 1; 2007, ch. 26, § 1; 2013, ch. 435, §§ 9-13, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Cross-References. Appointment of guardian ad litem in chancery court, § 21-1-701.

Chancery court jurisdiction, title 16, ch. 11, part 1.

Restrictions on appointment of nonresident, § 35-50-107.

Law Reviews.

A Quantum Leap for Ethical Guidance: Comparison of the Model Code and Rule 1.14 of the Proposed Rules of Professional Conduct (Donna S. Harkness), 35 No. 11 Tenn. B.J. 20 (1999).

NOTES TO DECISIONS

1. In General.

2. Jurisdiction.

3. —Juvenile Courts.

The jurisdiction of the county court (now juvenile or probate court) over infants and their estates, and over the appointment and removal of guardians, although general, is purely statutory. Lake v. McDavitt, 81 Tenn. 26, 1884 Tenn. LEXIS 4 (1884).

The power to appoint guardians, require renewal of their bonds, remove them and appoint successors, and require annual reports or settlements, devolves upon the county court (now juvenile or probate court), the duty of the county clerk to give certain notices to guardians and to call the court's attention thereto being merely ministerial. Brown v. Brown, 16 Tenn. App. 230, 64 S.W.2d 59, 1933 Tenn. App. LEXIS 6 (Tenn. Ct. App. 1933).

4. —Chancery Courts.

The chancery jurisdiction extends to the case of the person of the infant so far as necessary for his protection and education, and to the care of the property of the infant for its due management and preservation, and proper application for his maintenance. Lake v. McDavitt, 81 Tenn. 26, 1884 Tenn. LEXIS 4 (1884).

In addition to its statutory jurisdiction, the chancery court possesses its common law jurisdiction over infants and their estates, and may take control of an infant's property, and, in the absence of a general guardian, appoint a limited guardian of the person or estate of the infant, or a custodian or receiver of the property. Lake v. McDavitt, 81 Tenn. 26, 1884 Tenn. LEXIS 4 (1884).

5. Appointment of Guardian.

Court did not abuse its discretion in appointing father of deceased as guardian for minor children of deceased in preference to surviving spouse of deceased who had remarried, though surviving spouse was named executrix of will. Massingale v. Hale, 5 Tenn. 30 (1817).

Where the appointment of the guardian is upon condition that he execute a bond, with good security, in a penalty fixed by the court, on or by a given time, is a good appointment, if there is found, among the files of guardian bonds, a formal guardian bond, corresponding with the entry on the record, and other records are produced showing several settlements subsequently made between the court and the appointee in his character of guardian. Britain v. Cowen, 24 Tenn. 315, 1844 Tenn. LEXIS 63 (1844).

Letters must be obtained from the county court (now probate court) of testator's county. State ex rel. Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955, 1926 Tenn. LEXIS 80 (1927).

As required by T.C.A. § 34-1-107(a), (b), the trial court appointed a lawyer, to be the elderly widow's guardian ad litem in the conservatorship proceeding and, in the absence of evidence to the contrary, the appellate court presumed that the attorney complied with the statutory obligation to meet with the widow for the purpose of explaining the nature of the proceedings and to advise the widow of the widow's rights, including the right to contest the petition under T.C.A. § 34-1-107(d)(2)(C). In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

6. Special Guardian.

Where the infant's estate is so large that no one can be procured to make the statutory bond, and become guardian, the chancery court may assume the custody and control of the persons and estates of infants, by the appointment of a special guardian to act under the instructions of the court and to be subject to its orders; and, in such case, it may fix the penalty of the bond at a less sum than the statutory bond would be. Such special guardian shall act until the appointment and qualification of a regular guardian. Lake v. McDavitt, 81 Tenn. 26, 1884 Tenn. LEXIS 4 (1884).

Whenever a general guardian is appointed after appointment of a special guardian, the former will be entitled to demand and receive the property of the ward from the chancery court, or its special appointee, because a general or regular guardian under the statutory bond is always to be preferred to a special and limited guardian. Lake v. McDavitt, 81 Tenn. 26, 1884 Tenn. LEXIS 4 (1884).

7. Trustee May Act as Guardian.

Where the executor is appointed testamentary trustee of the entire estate of the testator's minor children, and is honest and capable, and has faithfully performed for them all the duties of guardian, without having qualified as their guardian, the chancery court will not remove him, and will not appoint a guardian for the custody of the persons of the infants, if such trustee is willing to continue to act as guardian in connection with the office of trustee. Vaccaro v. Cicalla, 89 Tenn. 63, 14 S.W. 43, 1890 Tenn. LEXIS 23 (1890).

8. Sale of Guardian Ad Litem Void.

A guardian ad litem cannot be appointed to represent minors in suit by creditors of deceased where court has prior thereto appointed a regular guardian for the minors, and order of sale granted to guardian ad litem is void. Darby's Lessee v. Anglin, 5 Tenn. 244, 1817 Tenn. LEXIS 108 (1817).

Collateral References.

Appointment of guardian for incompetent or for infant as affecting running of statute of limitations against ward. 86 A.L.R.2d 965.

Bastardizing child as affecting right to appointment as guardian. 37 A.L.R. 531.

Consideration and weight of religious affiliations in appointment of guardian for minor child. 22 A.L.R.2d 696.

Divorce court's acquisition of jurisdiction over custody and maintenance of child as precluding guardianship proceedings in another court. 146 A.L.R. 1167.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest. 69 A.L.R.3d 1198.

Priority and preference in appointing guardian of an incompetent. 65 A.L.R.3d 991.

Right of infant to select his own guardian. 85 A.L.R.2d 949.

Validity of condition in will in restraint of marriage as applied to appointment of guardian. 122 A.L.R. 26.

34-1-108. Hearings on petitions — Notice.

Except as provided in subsection (b), the hearing on a petition shall be held not less than seven (7) nor more than sixty (60) days from the date of service on the respondent or the date the guardian ad litem was appointed, whichever is later. The hearing date may be extended on motion showing good cause.
If the petition alleges the minor or person with a disability is faced with a life threatening situation, the court may schedule the hearing in less than seven (7) days from the date of service on the respondent; provided, that actual notice of the hearing is given to the closest relative and the respondent.
1. In a proceeding for the appointment of a conservator, a notice of the hearing shall be served on the respondent and any person, institution or residential provider having care or custody of the respondent by the guardian ad litem or as otherwise authorized under the Tennessee Rules of Civil Procedure. The notice of hearing shall be substantially in the following form:
  IN THE COURT OF , TENNESSEE AT IN THE MATTER OF Respondent No. NOTICE OF HEARING TO: SERVICE ADDRESS You are notified that a petition has been filed, a copy of which is attached, in which it is alleged that you are incapable of caring for yourself or disabled from managing your property, or both. The petition seeks the appointment of a conservator for your person or property, or both. The court, being satisfied that there is good cause for the exercise of jurisdiction as to the matters alleged in the petition, has set a hearing on at o'clock in the offices or the courtroom of the Honorable , judge of this court. The court has appointed a guardian ad litem to investigate these matters and make a report to the court. The guardian ad litem is charged with asserting your best interests and making recommendations, consistent with law, as to what action should be taken in your best interests. The name, address and telephone number of the guardian ad litem is: A list of your rights in connection with the above described hearing is attached or printed on the reverse side of this notice. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the court at my office on . Clerk and Master or Clerk
  
  Click to view form.
2. The notice shall contain on the reverse side or on an attached sheet those rights set out in § 34-3-106.
3. The notice shall also be served upon the closest relative or relatives of the respondent, as such persons are described in title 31, chapter 2, but not including the petitioner, and upon the person or institution, if any, having care and custody of the respondent or with whom the respondent is living. Service by mail, sent to the last known address of such persons or institution, shall be sufficient for purposes of this subdivision (c)(3).

Acts 1992, ch. 794, § 9; T.C.A. 34-11-108; 2013, ch. 435, §§ 14, 15, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-1-109. When fiduciary's appointment becomes effective — Evidence of appointment — Liability — Fiduciary oath.

On the entry of an order appointing the fiduciary, the administration of the oath as provided in subsection (b) and the posting of any required bond, the fiduciary's appointment becomes effective. The only effective evidence of appointment shall be duly issued letters of guardianship or conservatorship. Except for violations of § 39-14-101, the fiduciary shall have no liability for any act done pursuant to the order appointing the fiduciary between the date of the entry of the order and the date of the vacation of the order if the order is set aside on appeal.
Before delivering the letters of guardianship or conservatorship, the clerk shall administer to the fiduciary an oath for the faithful performance of the fiduciary's duties. If the fiduciary is a fiduciary of the minor's or person with a disability's property, the fiduciary's faithful performance oath shall include a promise to timely file each required inventory and accounting and to spend the assets of the minor or person with a disability only as approved by the court. If there is more than one (1) fiduciary and any of the fiduciaries is not a resident of the county in which the court supervising the proceedings is located, the oath of the non-resident fiduciary may be sworn or affirmed in the presence of a notary public and the acknowledgment of the fiduciary's oath, when certified by the notary public, shall be presented to the appropriate clerk. At least one (1) fiduciary's oath shall be taken by the clerk.
The social security number of the respondent shall be given to the duly appointed fiduciary and used in any other manner approved by the court. The court may release the social security number to a third party upon good cause shown and upon conditions that the court may deem appropriate.

Acts 1992, ch. 794, § 10; 1994, ch. 855, § 3; T.C.A. § 34-11-109; Acts 2004, ch. 866, § 11; 2007, ch. 26, § 2; 2013, ch. 435, §§ 34, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), §§ 79, 542, 562, 569, 586, 608, 690, 1039.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-503, 4-505, 4-506.

34-1-110. Management of property — Inventory — Filing — Failure to file or appear — Revocation of authority.

If the fiduciary is to manage the property of the minor or person with a disability, within sixty (60) days after appointment, the fiduciary shall file a sworn inventory containing a list of the property of the minor or person with a disability, together with the approximate fair market value of each property and a list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue. If the required information was included in the petition but not separately stated as an inventory, the inventory shall repeat the information provided in the petition and add any later discovered property or income sources.
Unless the court has approved an extension of time for filing the inventory, if the fiduciary fails to file the inventory within the required time, the clerk shall promptly notify the fiduciary and the fiduciary's attorney of record. If after notice the inventory has not been filed thirty (30) days thereafter, the clerk shall cite the fiduciary to appear on a date certain and render the inventory. Upon failure to appear as cited, the fiduciary shall be summoned to appear before the court and show cause why the fiduciary should not be held in contempt.
Unless the court has authorized an extension of time to file the inventory, if a fiduciary who has been summoned does not respond within thirty (30) days of the date the summons was received by the fiduciary, the court may enter an order revoking the fiduciary's authority and appointing a substitute fiduciary.

Acts 1992, ch. 794, § 11; T.C.A. § 34-11-110; Acts 2013, ch. 435, § 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-1-111. Accounting with court — Failure to account.

Except as provided in subsection (i), within thirty (30) days after the six-month anniversary of the fiduciary's date of appointment, the fiduciary shall file a sworn accounting with the court.
Except as provided in subsection (i), within sixty (60) days after each anniversary of the accounting required in subsection (a) or any other end of an accounting period selected by the fiduciary after the subsection (a) accounting, the fiduciary shall file a sworn accounting with the court. To select an accounting period end other than the end of the month during which the fiduciary was appointed, the fiduciary shall file a statement with the clerk advising of the accounting period selected. The accounting period shall not exceed twelve (12) months.
For good cause, the court may extend the time for filing the accounting.
1. The accounting shall itemize the receipts and the expenditures made during the period covered by the accounting. The same or similar items may be reported collectively. The accounting shall also detail the property held by the fiduciary at the end of the accounting period. To support the financial information reported, the fiduciary shall submit with the accounting:
  1. Each bank statement, brokerage statement or other document reporting any financial information;
  2. In connection with any accounting, to support the financial information reported, the fiduciary shall submit with the accounting the original of each cancelled check written on the account unless:
    1. The fiduciary is a bank to which § 45-2-1002(c) would apply or a savings and loan association or credit union to which § 45-2-1002(c) would apply if the savings and loan association or credit union were a bank, in which case the fiduciary shall comply with § 45-2-1002(c); or
    2. The fiduciary account is maintained in a “financial institution” as defined in § 34-1-101, that does not return the cancelled checks but provides a printed statement showing the date the check cleared, the payee and the amount, in which case the fiduciary shall submit a printed statement from the financial institution.
  3. A copy of any United States and Tennessee income tax returns filed on behalf of the minor or person with a disability. If no United States or Tennessee income tax return is due, the fiduciary shall include a statement in the accounting that no such return is due and shall set forth the gross income of the minor or person with a disability, and include information from the Internal Revenue Code or Tennessee Code Annotated evidencing the availability of the claimed exemption; and
  4. If the bond is secured by a corporate surety, a statement from the corporate surety that the bond is in force for the next annual period. The surety's liability under the bond shall not be cumulative and shall not exceed the sum of the bond in force at the time of default.
2. The accounting shall contain a statement concerning the physical or mental condition of the person with a disability, which statement shall demonstrate to the court the need, or lack of need, for the continuation of the fiduciary's services.
When the accounting has been confirmed, the clerk of the court shall return the original documentation required in subsection (c) to the fiduciary.
Unless the court has approved an extension of time for filing the accounting, if the fiduciary fails to file the accounting within the required time, the clerk shall promptly notify the fiduciary and the fiduciary's attorney of record. If after notice the accounting has not been filed thirty (30) days thereafter, the clerk shall cite the fiduciary to appear on a date certain and render the accounting. Upon failure to appear as cited, the fiduciary shall be summoned to appear before the court and show cause why the fiduciary should not be held in contempt.
Unless the court has authorized an extension of time to file the accounting, if a fiduciary who has been summoned does not respond within thirty (30) days of the date the summons was received by the fiduciary, the court may enter an order revoking the fiduciary's authority and appointing a substitute fiduciary.
On the failure of the fiduciary to account, the fiduciary may be charged with the value of the assets at the beginning of the year. The amount shall accrue interest at the prejudgment rate and compound annually until a proper accounting is made and approved. On the issuance of a show cause order and the failure of the fiduciary to appear and explain, the court shall allow the entry of judgment against the fiduciary and the fiduciary's surety for the amount unaccounted for, plus interest. The fiduciary's surety shall be given adequate notice and may appear and make defense.
Financial accountings may be excused in the discretion of the court, if the court makes a finding based on the evidence presented at a hearing that waiver of the accountings would be appropriate, would be in the best interest of the minor or person with a disability and that one (1) of the following exists:
1. The fiduciary holds no property of the minor or person with a disability and receives only fixed periodic payments, including, but not limited to, social security, veterans benefits or workers' compensation benefits, and the order appointing the fiduciary authorizes the fiduciary to apply the entire periodic payment to the needs of the minor or person with a disability. The fiduciary holds no property of the minor or person with a disability if the property of the minor or person with a disability is:
  1. Deposited with the clerk and master or clerk of the court;
  2. Placed with a financial institution and the fiduciary and the financial institution enter into a written agreement, filed with the court, in which the financial institution agrees it will not permit the fiduciary to withdraw the principal without court approval; or
2. The cost of the accounting would exceed twenty-five percent (25%) of the income produced by the property held by the fiduciary.
3. Subdivision (d)(2) requiring a report regarding the physical or mental condition of the person with a disability may not be waived or excused.
This section does not apply to accountings filed pursuant to § 34-5-111, relating to veterans' guardians. The provisions of this section related to financial accountings do not apply to fiduciaries who do not have authority over the property of the person with a disability.

Acts 1992, ch. 794, § 12; 1994, ch. 855, §§ 4, 5, 16; 1998, ch. 762, § 3; T.C.A. § 34-11-111; Acts 2013, ch. 435, §§ 16-20, 46.

Code Commission Notes.

Former subsection (j), relating to conservators for property of disabled persons, who failed to file a final accounting, being given a grace period of six months after April 21, 1994, was deleted by the code commission as obsolete in 1996.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), 2 Mem. St. U.L. Rev. 41 (1972).

Collateral References.

Obligation of guardian in respect of services rendered by ward. 64 A.L.R. 692.

Rents and profits or use and occupation, duty of guardian who is also a cotenant to account for. 51 A.L.R.2d 388.

Third person, adjudication of account of guardian as prerequisite to remedy against, in respect of property transferred to him in breach of trust. 132 A.L.R. 1353.

34-1-112. Compensation to fiduciary.

The fiduciary may receive reasonable compensation for services rendered. The court shall set the actual compensation to be paid, taking into account:
1. The complexity of the property of the minor or person with a disability;
2. The amount of time the fiduciary spent in performing fiduciary duties;
3. Whether the fiduciary had to take time away from the fiduciary's normal occupation;
4. Whether the services provided the minor or person with a disability are those the fiduciary should normally have provided had there been no need for a fiduciary, and
5. Such other matters as the court deems appropriate.
No person, other than a person performing temporary fiduciary services while a proceeding is pending, who has not been appointed by the court to serve as a fiduciary shall receive any compensation for fiduciary services; however, this does not preclude payment for the necessary care of the minor or person with a disability.
No compensation to the fiduciary shall be paid without prior court approval.

Acts 1992, ch. 794, § 13; T.C.A. § 34-11-112; Acts 2013, ch. 435, § 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Cross-References. Compensation of public guardian, § 30-1-407.

NOTES TO DECISIONS

1. In General.

Conservatorship court was directed to enter an order on remand directing the emergency interim conservator to present a detailed explanation of the basis for its representative's claim for fees and expenses for the conservatorship court's consideration based upon the statutory factors. In re Hudson, 578 S.W.3d 896, 2018 Tenn. App. LEXIS 458 (Tenn. Ct. App. Aug. 10, 2018).

Collateral References.

Death of guardian as affecting right to compensation. 7 A.L.R. 1595.

Fiduciary's compensation on estate assets distributed in kind. 32 A.L.R.2d 778.

Resignation or removal of guardian as affecting his compensation. 96 A.L.R.3d 1102.

34-1-113. Payments by fiduciary.

The fiduciary is entitled to pay from the property of the minor or person with a disability the costs of any required medical examination, the guardian ad litem fee, bond premium, court costs, attorney fees, fees for income tax preparation and court accountings, investment management fees, taxes or governmental charges for which the minor or person with a disability is obligated and such other expenses as the court determines are necessary for the fiduciary. The fiduciary shall not pay any attorney fee, guardian ad litem fee, fees for income tax preparation and court accountings or investment management fees until the amount of those fees is approved by the court.
Either prior to or after payment, the court may approve payments by the fiduciary from the property of the minor or person with a disability that are reasonable considering all relevant factors, are incurred by the fiduciary in good faith on behalf of the minor or person with a disability, and are intended to benefit or protect the minor or person with a disability or such person's property, whether or not an actual benefit or protection is ultimately in fact attained. Such requests and/or payments shall be reviewed by the court pursuant to fiduciary standards.
All other expenses, including those that do not comply with the requirements of subsection (b), may be approved by the court, either prior to or after payment, upon a determination that they are reasonable and:
1. They protected or benefited the minor or person with a disability or such person's property; or
2. That their payment is in the best interest of the minor or person with a disability.
For purposes of subsection (a), attorney fees shall include fees for preparing fiduciary fee applications and other related filings that are required to be submitted to the court including petitions to secure approval or reimbursement for any expenses paid by the fiduciary that meet the requirements of this section, provided that the amount of those fees is determined by the court to be reasonable in view of the services rendered.
Notwithstanding any law to the contrary, the duty of the fiduciary appointed under this title shall not cease at the death of the person with a disability, but shall continue for the sole purpose of making reasonable and proper funeral arrangements for the disposition of the remains of the person with a disability, at death. Upon the death of the person with a disability, the fiduciary shall be allowed credits in the accounting for all reasonable expenses of the person with a disability's funeral. If the estate of the person with a disability has assets in an amount less than five thousand dollars ($5,000), the fiduciary may utilize this entire amount for payment of funeral expenses and will be given credit for the same in the final accounting.

Acts 1992, ch. 794, § 14; 1994, ch. 855, § 6; 1997, ch. 319, § 1; T.C.A. § 34-11-113; Acts 2013, ch. 435, §§ 35, 46.

Compiler's Notes. Acts 1997, ch. 319, § 2, provides that the amendment by that act shall apply to all appropriate expenditures incurred for the benefit of a minor or disabled person relative to guardianships created before, on or after May 29, 1997.

Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Attorney General Opinions. Duties and liabilities of district public guardian. OAG 13-36, 2013 Tenn. AG LEXIS 37 (5/2/13).

34-1-114. Charging of costs of proceedings.

The costs of the proceedings, which are the court costs, the guardian ad litem fee and expenses incurred by the guardian ad litem in conducting the required investigations, the required medical examination costs, and the attorney's fee for the petitioner, may, in the court's discretion, be charged against the property of the respondent to the extent the respondent's property exceeds the supplemental security income eligibility limit, or to the petitioner or any other party, or partially to any one or more of them as determined in the court's discretion. In exercising its discretion to charge some or all of the costs against the respondent's property, the fact a conservator is appointed or would have been appointed but for an event beyond the petitioner's control is to be given special consideration. The guardian ad litem fee and the attorney's fee for the petitioner shall be established by the court. If a fiduciary is cited for failure to file an inventory or accounting, the costs incurred in citing the fiduciary, in the discretion of the court, may be charged to and collected from the cited fiduciary.
If the principal purpose for bringing the petition is to benefit the petitioner and there would otherwise be little, if any, need for the appointment of a fiduciary, the costs of the proceedings may be assessed against the petitioner, in the discretion of the court.

Acts 1992, ch. 794, § 15; 1994, ch. 855, § 7; 1997, ch. 407, § 4; T.C.A. § 34-11-114; Acts 2012, ch. 917, § 1; 2013, ch. 435, § 21.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Applicability.

When a daughter sought appointment as the daughter's mother's conservator, it was not error to order the daughter to pay the fees and costs of the mother's guardian ad litem because T.C.A. § 34-1-114 clearly granted the court such discretion. In re Conservatorship of McQuinn, — S.W.3d —, 2015 Tenn. App. LEXIS 161 (Tenn. Ct. App. Mar. 30, 2015).

4. Attorney Fees.

Conservator was appointed for the ward, but the spouse was not the petitioner, and thus she was not entitled to recover her attorney fees. In re King, — S.W.3d —, 2015 Tenn. App. LEXIS 638 (Tenn. Ct. App. Aug. 6, 2015).

One fee award against a ward's children was not an abuse of discretion because (1) the award had a statutory basis, and (2) the children did not show the award was void or extraordinary circumstances justifying relief existed. In re Conservatorship Campbell, — S.W.3d —, 2017 Tenn. App. LEXIS 727 (Tenn. Ct. App. Nov. 3, 2017).

Fee awards were final for appeal because (1) the awards were probate orders, (2) each resolved a specific claim, (3) the awards were not temporary, (4) no review was pending in the trial court, aside from a motion to set the awards aside, and (5) contempt proceedings based on the same acts did not defeat finality. In re Conservatorship Campbell, — S.W.3d —, 2017 Tenn. App. LEXIS 727 (Tenn. Ct. App. Nov. 3, 2017).

Two fee awards against a ward's children were void because the awards violated due process, as (1) the children were given only one day's electronic and regular mail notice of a hearing on the awards, (2) the children resided out of state, and (3) the children were unrepresented. In re Conservatorship Campbell, — S.W.3d —, 2017 Tenn. App. LEXIS 727 (Tenn. Ct. App. Nov. 3, 2017).

Probate court erred in denying a motion to set aside fee awards as to two awards because the court should have viewed the motion as a motion to set aside a void judgment since the awards were final, to the extent the awards were alleged to be void for lack of notice. In re Conservatorship Campbell, — S.W.3d —, 2017 Tenn. App. LEXIS 727 (Tenn. Ct. App. Nov. 3, 2017).

Remand was necessary because the conservatorship court improperly transferred to the probate court motions for attorney's fees without making necessary findings of fact and improperly closed the conservatorship without making findings of fact concerning the objections to the final accounting. In re Hudson, 578 S.W.3d 896, 2018 Tenn. App. LEXIS 458 (Tenn. Ct. App. Aug. 10, 2018).

5. Attorney Ad Litem Fees.

In a conservatorship action in which an attorney ad litem was appointed to represent respondent, the trial court correctly held it did not have discretion to charge any portion of the attorney ad litem's fees to any party but respondent because the legislature removed the mandate concerning the fees of guardians ad litem under T.C.A. § 34-1-114(a), but not attorneys ad litem. In re Allen, — S.W.3d —, 2020 Tenn. App. LEXIS 160 (Tenn. Ct. App. Apr. 15, 2020).

34-1-115. Investments — Trust — Management plan — Court approval — Waiver.

A fiduciary is limited in its investments to the investments permitted by title 35, chapter 3 unless estate funds or property, or both, are transferred to a trust created pursuant to the Tennessee Uniform Trust Code, compiled in title 35, chapter 15. All funds held by a fiduciary shall be invested within forty-five (45) days of receipt of the funds unless otherwise allowed by the court.
Except as provided in subsection (d), at the hearing for the appointment of a fiduciary, the proposed fiduciary shall present an outline of the proposed property management plan for the respondent's property. If the proposed property management plan cannot be presented at the appointment hearing, the fiduciary shall submit the proposed property management plan to the court for approval before any property is invested. The purpose of the property management plan is to advise the court of the general type of property in which the respondent's property will be invested so the court will be assured the fiduciary will be making approved investments. The plan need not detail the individual asset or assets. For example, if the fiduciary plans to invest in certificates of deposit, the plan need only make that statement. It is not necessary to identify the individual institution or institutions whose certificates will be purchased.
Except as provided in subsections (d) and (f), each fiduciary shall request court approval to change the nature of the fiduciary's investment or investments. Compliance with the preceding sentence does not require court approval to change the same type of investment from one institution to another. For example, changing a certificate of deposit from one institution to another does not require court approval. Changing from one type of investment to another does require court approval. For example, changing from a certificate of deposit to traded stock would require court approval. If the fiduciary's property management plan describes proposed changes the fiduciary would make in response to economic and market conditions, the court may grant advance approval to make changes as described in the plan.
If the fiduciary is a financial institution, it shall not be required to seek court approval to change any investment.
1. Notwithstanding any law to the contrary, no property management plan shall be required for the property of a minor or person with a disability if such property does not exceed twenty-five thousand dollars ($25,000) in value, unless, on the motion of any interested party, including the guardian ad litem, the court finds such plan would be in the best interest of such minor or person with a disability.
2. If no plan is filed pursuant to subdivision (e)(1), the fiduciary's first accounting and all subsequent accountings shall state how the funds of the estate are invested and how the fiduciary proposes that the funds will be invested for the coming year.
1. A fiduciary may petition the court to waive the requirement to request court approval to change the nature of any investment described in the property management plan as required by subsection (c). The waiver shall be within the court's sole discretion, and the court may revoke the waiver at any time. In deciding upon the waiver, the court may consider the fiduciary's history as a conservator, the length of conservatorship, the number of years the fiduciary has acted as a conservator, and any other factors that the court deems proper. The court may require the conservator to obtain professional advice or assistance regarding the investment of excess funds.
2. The court may approve the waiver request at a hearing for which all of the respondent's heirs at law or beneficiaries had notice and an opportunity to be heard regarding the proposed waiver and change of the nature of the fiduciary's investments.
3. If a waiver is approved by the court, the waiver shall be reduced to a written order. The fiduciary shall at all times maintain a minimum balance of funds sufficient to cover anticipated costs of care of the respondent for a minimum of three (3) years.
4. If a waiver is approved by the court, the fiduciary shall provide, in the accounting report required by § 34-1-111(b), a detailed outline of the investments made on behalf of the respondent and the current status of those investments. The purpose of the report is to assure the court that:
  1. The fiduciary maintains the minimum balance prescribed by the court;
  2. The fiduciary is responsibly investing the respondent's assets within the categories of investments approved in § 35-3-102;
  3. The investment strategy demonstrates reasonable diversification to limit the risk of loss in vested funds;
  4. There are no investments that would expose the respondent to any additional liability other than the possible depletion or loss of funds invested; and
  5. The fiduciary keeps the court informed as to any changes in investments.
If funds are transferred to a trust as referenced in subsection (a), the fiduciary and trust protector are relieved of requirements under this title where trust assets, investments, and their financial nature require public disclosure or filing upon public record. A certification of trust outlined under § 35-15-1013 may be filed with the clerk of the court to show such trust is created. Such trust must be governed and administered by a qualified trustee as permitted by title 35. Further, the court clerk with personal jurisdiction over the person with a disability or minor must be named trust protector of said trust with powers prescribed by §§ 35-15-1201 — 35-15-1206.

Acts 1992, ch. 794, § 16; 1994, ch. 855, § 8; 1996, ch. 880, § 2; T.C.A. § 34-11-115; Acts 2013, ch. 435, § 46; 2016, ch. 640, §§ 1, 2; 2019, ch. 340, §§ 6, 7.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Amendments. The 2016 amendment substituted “Except as provided in subsections (d) and (f)” for “Except as provided in subsection (d)” at the beginning of the first sentence of (c) and added (f).

The 2019 amendment added “unless estate funds or property, or both, are transferred to a trust created pursuant to the Tennessee Uniform Trust Code, compiled in title 35, chapter 15” to the end of the first sentence in (a), and added (g).

Effective Dates. Acts 2016, ch. 640, § 4. March 23, 2016.

Acts 2019, ch. 340, § 20. May 10, 2019.

Law Reviews.

1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce), 32 No. 6 Tenn. B.J. 12 (1996).

NOTES TO DECISIONS

1. Management Plan.

Conservator never sought to invest the ward's property, and thus the conservator was not required to submit a property management plan. In re Melton, — S.W.3d —, 2015 Tenn. App. LEXIS 621 (Tenn. Ct. App. July 31, 2015), appeal dismissed, In re Conservatorship of Melton, — S.W.3d —, 2016 Tenn. LEXIS 203 (Tenn. Mar. 23, 2016).

3. No Violation.

Conservator did not violate the statute because the funds were never invested by the ward, and the conservator merely recovered funds that had been unlawfully converted by the daughter. In re Melton, — S.W.3d —, 2015 Tenn. App. LEXIS 621 (Tenn. Ct. App. July 31, 2015), appeal dismissed, In re Conservatorship of Melton, — S.W.3d —, 2016 Tenn. LEXIS 203 (Tenn. Mar. 23, 2016).

Collateral References.

Authorization by trust instrument of investment of trust funds in nonlegal investments. 78 A.L.R.2d 7.

Corporate stock, right of guardian to invest trust funds in. 12 A.L.R. 574, 122 A.L.R. 657, 78 A.L.R.2d 7.

Corporation of which he is officer or stockholder, guardian's purchase from, as voidable or as ground for surcharging his account. 105 A.L.R. 449.

Ownership by guardian in his own right of stock in a corporation in which he also holds stock in his fiduciary capacity. 106 A.L.R. 220, 161 A.L.R. 1039.

Power of guardian as to mortgaging infant's real property. 95 A.L.R. 839.

Protection of investment in stocks by submitting to voluntary assessment, power and duty of guardian as to. 104 A.L.R. 979.

Unauthorized securities coming into his hands, right of guardian to retain. 37 A.L.R. 559, 122 A.L.R. 801, 135 A.L.R. 1528.

34-1-116. Sale of property.

Except as provided in subsections (b) and (d), no property of a minor or person with a disability may be sold without prior approval of the court that appointed the fiduciary.
Unless the fiduciary is holding tangible property for the benefit of a minor or person with a disability pursuant to the terms of a will, trust or other written document, the fiduciary has the authority to sell each item of tangible property with a fair market value of less than one thousand dollars ($1,000) or a motor vehicle without specific court approval.
No fiduciary, relative of a fiduciary, employee of a fiduciary, guardian ad litem or attorney for any party shall be a purchaser of property of the minor or person with a disability without court approval.
This section shall not apply to any fiduciary who is not required to file a property management plan or who has had its investment plans approved as part of its property management plan.
When the fiduciary seeks court approval for the sale of property, a copy of the pleading requesting approval of the sale shall be sent to the minor or person with a disability by certified mail with return receipt requested. Although not required, the court may appoint a guardian ad litem.

Acts 1992, ch. 794, § 17; 1994, ch. 855, § 9; T.C.A. § 34-11-116; Acts 2013, ch. 435, § 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Cross-References. Fees of clerks of courts administering probate matters, §§ 8-21-401, 8-21-701, 8-21-702.

Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 7.

Tennessee Jurisprudence, 10 Tenn. Juris., Equitable Conversion, § 7; 14 Tenn. Juris., Guardian and Ward, §§ 8, 10; 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 9; 20 Tenn. Juris., Partition, § 23.

Attorney General Opinions. Effect of appointment as conservator upon power of attorney to sell land, OAG 97-156, 1997 Tenn. AG LEXIS 180 (11/14/97).

Collateral References.

Constitutionality of statute authorizing guardian to sell or lease land of ward. 4 A.L.R. 1552.

Exchange as within power of sale. 63 A.L.R. 1003.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest. 69 A.L.R.3d 1198.

Power of court to confirm sale of ward's property over objection of guardian. 43 A.L.R.2d 1445.

Sale of personal property without order of court. 108 A.L.R. 936.

Sale without order of court. 108 A.L.R. 936.

Subsequent appointment of guardian, as curing invalidity of prior sale of ward's property. 2 A.L.R. 1565.

34-1-117. Resignation of fiduciary — Transfer of fiduciary relationship.

A fiduciary may resign by submitting a written request to the court. If the court approves and the fiduciary submits a final accounting that is approved, the resignation of the fiduciary shall be effective on the date set by the court.
For minors, the court shall permit the transfer of the fiduciary relationship to another county, state or country if the court finds that either:
1. The minor and the serving Tennessee fiduciary have both moved to another county, state or country and the serving Tennessee fiduciary has been appointed the fiduciary in the other county, state or country; or
2. Only the minor has moved to another county, state or country and a fiduciary other than the serving Tennessee fiduciary has been appointed the fiduciary in the other county, state or country.
For minors, the procedure to seek the transfer of the fiduciary relationship jurisdiction to a court other than the Tennessee court currently supervising the fiduciary relationship shall be the following:
1. The fiduciary, who may be the serving Tennessee fiduciary or the fiduciary appointed in the other jurisdiction, shall file a sworn petition in the Tennessee court currently supervising the fiduciary relationship. The petition shall contain the following:
  1. A brief statement of the reason or reasons for the removal of the minor from the county of the Tennessee court currently supervising the fiduciary relationship;
  2. A certified copy of the document evidencing the appointment of a fiduciary for the minor in the new jurisdiction that is the place of actual residence of the minor;
  3. An accounting of the minor's property up to the date of the filing of the petition. If the petitioning fiduciary is not the serving Tennessee fiduciary, the court may require the serving Tennessee fiduciary to submit the accounting;
  4. A prayer for the removal of the fiduciary proceedings to the new jurisdiction; and
  5. If appropriate, a prayer for the removal of the minor's property to the new jurisdiction;
2. Upon the hearing of the petition, the petitioning fiduciary shall provide the court with the following:
  1. Satisfactory evidence that the minor and, if applicable, the serving Tennessee fiduciary have moved from the county of the Tennessee court currently supervising the fiduciary relationship and are actually residing in the new jurisdiction;
  2. An accounting of the minor's property up to the date of the hearing. If the petitioning fiduciary is not the serving Tennessee fiduciary, the court may require the serving Tennessee fiduciary to submit the accounting;
  3. A certified copy of the order of the court appointing the fiduciary in the new jurisdiction; and
  4. A copy of the bond given by the fiduciary in the new jurisdiction with a certificate of the clerk of the court that the bond was signed;
3. If upon the hearing the court is satisfied with the sufficiency of the evidence presented and the court determines that it is in the best interests of the minor the court shall:
  1. Order the removal of the fiduciary proceedings and, if applicable, the minor's property to the jurisdiction of the actual residence of the minor; and
  2. Discharge the Tennessee fiduciary and the fiduciary's surety on the bond in the Tennessee proceedings; and
4. Upon the granting of the order, the court shall transfer to the appropriate court in the new jurisdiction a copy of the accounting of the serving Tennessee fiduciary and all records pertaining to the fiduciary relationship.
For a disabled adult person, the court shall permit the transfer of the fiduciary relationship to another county, if the court finds that either:
1. The disabled adult person and the serving Tennessee fiduciary have both moved to another county, and the serving Tennessee fiduciary has been appointed the fiduciary in the other county; or
2. Only the disabled adult person has moved to another county, and a fiduciary other than the serving Tennessee fiduciary has been appointed the fiduciary in the other county.
For a disabled adult person, the procedure to seek the transfer of the fiduciary relationship jurisdiction to a court in another county other than the Tennessee court currently supervising the fiduciary relationship shall be the following:
1. The fiduciary, who may be the serving Tennessee fiduciary or the fiduciary appointed in the other county, shall file a sworn petition in the Tennessee court currently supervising the fiduciary relationship. The petition shall contain the following:
  1. A brief statement of the reason or reasons for the removal of the person with a disability from the county of the Tennessee court currently supervising the fiduciary relationship;
  2. A certified copy of the document evidencing the appointment of a fiduciary for the person with a disability in the new jurisdiction that is the place of actual residence of the minor or person with a disability;
  3. An accounting of the disabled adult person's property up to the date of the filing of the petition. If the petitioning fiduciary is not the serving Tennessee fiduciary, the court may require the serving Tennessee fiduciary to submit the accounting;
  4. A prayer for the removal of the fiduciary proceedings to the new jurisdiction; and
  5. If appropriate, a prayer for the removal of the disabled adult person's property to the new jurisdiction;
2. Upon the hearing of the petition, the petitioning fiduciary shall provide the court with the following:
  1. Satisfactory evidence that the disabled adult person and, if applicable, the serving Tennessee fiduciary have moved from the county of the Tennessee court currently supervising the fiduciary relationship and are actually residing in the new jurisdiction;
  2. An accounting of the person with a disability's property up to the date of the hearing. If the petitioning fiduciary is not the serving Tennessee fiduciary, the court may require the serving Tennessee fiduciary to submit the accounting;
  3. A certified copy of the order of the court appointing the fiduciary in the new jurisdiction; and
  4. A copy of the bond given by the fiduciary in the new jurisdiction with a certificate of the clerk of the court that the bond was signed;
3. If upon the hearing the court is satisfied with the sufficiency of the evidence presented and the court determines it is in the best interests of the person with a disability, the court shall:
  1. Order the removal of the fiduciary proceedings and, if applicable, the adult person with a disability's property to the jurisdiction of the actual residence of the adult person with a disability; and
  2. Discharge the Tennessee fiduciary and the fiduciary's surety on the bond in the Tennessee proceedings; and
4. Upon the granting of the order, the court shall transfer to the appropriate court in the new jurisdiction a copy of the accounting of the serving Tennessee fiduciary and all records pertaining to the fiduciary relationship.
Other issues relating to subject matter jurisdiction of conservatorships, guardianships and protective proceedings shall be governed by chapter 8 of this title.

Acts 1992, ch. 794, § 18; 1994, ch. 855, § 10; T.C.A. § 34-11-117; Acts 2010, ch. 817, § 2; 2013, ch. 435, §§ 39, 46; 2017, ch. 290, § 12.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Amendments. The 2017 amendment substituted “chapter 8 of this title” for “chapter 14 of this title” at the end of (f).

Effective Dates. Acts 2017, ch. 290, § 16. July 1, 2017.

Cross-References. Resignation of representatives, §§ 30-1-112, 30-1-113.

Law Reviews.

Attorney and Client — Liability of Attorney for Misdirection of Minor's Funds, 8 Tenn. L. Rev. 191 (1930).

34-1-118. Persons receiving property — Receipt for property — Filing.

Whenever a fiduciary distributes property of a minor or person with a disability, the person receiving the property of the minor or person with a disability from the fiduciary shall sign a receipt for the property, which receipt shall be filed with the fiduciary's next accounting.

Acts 1992, ch. 794, § 19; T.C.A. § 34-11-118; Acts 2013, ch. 435, § 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-1-119. Standby fiduciary.

At the request of the petitioner, the fiduciary, or on the court's own motion, a standby fiduciary may be appointed by the court to take the place of the fiduciary on a temporary or, if necessary, on a permanent basis. The standby fiduciary shall have the same powers, rights and obligations as the fiduciary.
When it is necessary for the standby fiduciary to function, the regular fiduciary shall notify the court or other interested party of the need for the services of the standby fiduciary and the anticipated duration of the need for the services. On receipt of the notice, the court shall enter an order authorizing the standby fiduciary to function in the place of the fiduciary. The order shall state the duration of the standby fiduciary's authority and shall suspend the authority of the fiduciary. If the fiduciary is bonded, the standby fiduciary must also be bonded in the same amount as the fiduciary. Under no circumstance can the fiduciary and standby fiduciary be simultaneously empowered to act.
Although there is no current need for the services of a fiduciary:
1. The custodial parent or parents or the person designated by the custodial parent or parents of a minor child or children may petition in accordance with chapter 2 of this title; or
2. Any adult may petition for the adult in accordance with chapter 3 of this title for the appointment of a standby fiduciary. The standby fiduciary authorized by this subsection (c) may be appointed without the necessity of the appointment of a fiduciary. The court shall respond to the petition as though it were a petition for the appointment of a currently active fiduciary so that all questions concerning the appropriateness of the proposed fiduciary or the property management plan are resolved at the hearing on the petition, which action will minimize delay in activating the standby fiduciary when necessary. If appointed, the court shall define in the order of appointment the circumstances under which the standby fiduciary shall become an active fiduciary and the actions that the standby fiduciary shall take to notify the court of the need for the standby fiduciary to become active. If the court determines there is a need for an active fiduciary, the court shall issue an order authorizing the standby fiduciary to function which order shall contain such other authority or restriction, consistent with this chapter, and chapters 2 and 3 of this title, as the court determines is in the best interest of the minor or person with a disability. In considering a petition for the appointment of a standby fiduciary, the court shall try to minimize the costs to the petitioner to the extent the court determines it is in the best interest of the minor or the person with a potential disability.

Acts 1992, ch. 794, § 20; 1997, ch. 407, § 5; T.C.A. § 34-11-119; Acts 2013, ch. 435, §§ 22, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-1-120. When people may be appointed fiduciary — Eligible persons.

No personal representative of an estate, any part of which is distributable to a minor, except a parent, grandparent, sibling of the minor or person named by the testator to be guardian, shall be appointed the fiduciary for the minor until the personal representative has first settled its accounts as personal representative. No personal representative of an estate, any part of which is distributable to a person with a disability, except a parent, spouse, child, grandchild, grandparent or sibling of the person with a disability, shall be appointed the fiduciary for the person with a disability until the personal representative has first settled its accounts as personal representative.

Acts 1992, ch. 794, § 21; 1994, ch. 855, § 11; 1997, ch. 407, § 6; 1999, ch. 491, § 7; T.C.A. § 34-11-120; Acts 2013, ch. 435, § 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-1-121. Powers of court — Additional actions — Waiver of requirements — Compromise.

The court has broad discretion to require additional actions not specified in this chapter, and chapters 2 and 3 of this title as the court deems in the best interests of the minor or person with a disability and the property of the minor or the person with a disability. The court also has discretion to waive requirements specified in this chapter, and chapters 2 and 3 of this title if the court finds it is in the best interests of the minor or person with a disability to waive such requirements, particularly in those instances where strict compliance would be too costly or place an undue burden on the fiduciary or the minor or the person with a disability.
In any action, claim, or suit in which a minor or person with a disability is a party or in any case of personal injury to a minor or person with a disability caused by the alleged wrongful act of another, the court in which the action, claim, or suit is pending, or the court supervising the fiduciary relationship if a fiduciary has been appointed, has the power to approve and confirm a compromise of the matters in controversy on behalf of the minor or person with a disability. If the court deems the compromise to be in the best interest of the minor or person with a disability, any order or decree approving and confirming the compromise shall be binding on the minor or person with a disability.

Acts 1992, ch. 794, § 22; 1994, ch. 855, § 12; 2000, ch. 610, § 1; T.C.A. § 34-11-121; Acts 2013, ch. 435, §§ 40, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Costs.

In a conservatorship action in which an attorney ad litem was appointed to represent respondent, T.C.A. § 34-1-121(a) did not give the trial court discretion to waive T.C.A. § 34-1-125(b)' s mandate that the costs of the attorney ad litem were to be assessed against respondent because T.C.A. § 34-1-121(a) was a general provision, but T.C.A. § 34-1-125(b) was a specific provision, and the specific provision in § 34-1-125(b) controlled over the general provision in T.C.A. § 34-1-121(a); and, if the discretionary authority granted by § 34-1-121(a) was broad enough to allow a trial court to dispense with the “shall” directive under T.C.A. § 34-1-125(b), it would be rendered meaningless. In re Allen, — S.W.3d —, 2020 Tenn. App. LEXIS 160 (Tenn. Ct. App. Apr. 15, 2020).

34-1-122. Distributions to persons other than minor — Gift program.

In considering expenditures of income or principal of the property of the minor or person with a disability, the court may authorize distributions to persons other than the minor or person with a disability if the court determines the expenditures are in the best interests of the minor or person with a disability. In making its decision, the court may consider whatever information the court deems relevant to its decision, keeping in mind its primary responsibility is for the care and maintenance of the minor or person with a disability and the person's property. No gift program shall be authorized unless there is evidence the person with a disability established a gift program prior to becoming a person with a disability or, even though the person with a disability had not established a gift program, a gift program would reduce the person with a disability's tax liability and would not jeopardize the person with a disability's care and long-term well-being.

Acts 1992, ch. 794, § 23; T.C.A. § 34-11-122; Acts 2013, ch. 435, §§ 41, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Law Reviews.

Tennessee's Creative Solution: Estate Planning After Incompetence (Dan. W. Holbrook), 35 No. 6 Tenn. B.J. 13 (1999).

34-1-123. Summons to appear for abuse, mismanagement or failure to perform — Removal — Submission of matter to district attorney general's office.

The court in its discretion may summon a fiduciary to appear before the court and may, if cause be shown, remove the fiduciary for any abuse, mismanagement, neglect or failure to perform the duties of fiduciary as set forth in this chapter, and chapters 2 and 3 of this title. If the court determines title 39, chapter 14, may apply to any fiduciary, the court in its discretion may submit the matter to the district attorney general's office.

Acts 1992, ch. 794, § 24; T.C.A. § 34-11-123.

Cross-References. Duties of county clerk, § 18-6-106.

Fiduciary bond, § 34-1-105.

Sentence of imprisonment operates as a removal from office, § 40-20-115.

Surety of guardian, §§ 29-33-107 — 29-33-115.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), § 80.

Law Reviews.

Tennessee Civil Disabilities: A Systemic Approach (Neil P. Cohen), 41 Tenn. L. Rev. 253 (1974).

NOTES TO DECISIONS

1. Petition for Removal.

Collateral References.

Affiliated corporation, transaction with, by corporate guardian as violation of rule against self-dealing. 151 A.L.R. 905.

Corporate organization, changes in, as affecting status of corporation as guardian. 61 A.L.R. 994, 131 A.L.R. 753.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest. 69 A.L.R.3d 1198.

Improper handling of funds, investments, or assets as ground for removal of guardian. 128 A.L.R. 535.

34-1-124. No fiduciary appointed — Expunction of record.

If an action for the appointment of a fiduciary is brought but no fiduciary is appointed, the court may for good cause enter an order permitting expunction of the record.

Acts 1992, ch. 794, § 25; T.C.A. § 34-1-124.

34-1-125. Attorney ad litem.

The court shall appoint an attorney ad litem to represent the respondent on the respondent's request, upon the recommendation of the guardian ad litem or if it appears to the court to be necessary to protect the rights or interests of the respondent. The attorney ad litem shall be an advocate for the respondent in resisting the requested relief.
The cost of the attorney ad litem shall be charged against the assets of the respondent.

Acts 1992, ch. 794, § 26; T.C.A. § 34-11-125.

NOTES TO DECISIONS

1. In General.

Tennessee statutes governing divorce do not specifically address the appointment of an attorney ad litem, but in this case, where the motion filed by the guardian ad litem sought to appoint an attorney ad litem to assist the guardian ad litem during the course of the appeal, it was within the discretion of the trial court to appoint an attorney ad litem and the trial court did not abuse its discretion in ordering the appointment. Toms v. Toms, 209 S.W.3d 76, 2005 Tenn. App. LEXIS 635 (Tenn. Ct. App. 2005), appeal denied, Toms v. Williams , — S.W.3d —, 2006 Tenn. LEXIS 596 (Tenn. 2006).

2. Failure to Request an Attorney Ad Litem.

As required by T.C.A. § 34-1-107(a), (b), the trial court appointed a lawyer, to be the elderly widow's guardian ad litem in the conservatorship proceeding and, however, the lawyer never requested the chancery court to appoint an attorney ad litem for the widow pursuant to T.C.A. § 34-1-125 to seek to set aside the gifts or to challenge the claims that the widow was so incapacitated that she required a conservator. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

3. Award of Costs.

In a conservatorship action in which an attorney ad litem was appointed to represent respondent, the trial court did not have discretion to charge any portion of the attorney ad litem's fees to any party but respondent because, although T.C.A. § 20-12-119 applied to all civil cases, it was a general statutory provision that was superseded by the specific statutory provision in T.C.A. § 34-1-125(b) mandating that the costs of the attorney ad litem were to be assessed against respondent. In re Allen, — S.W.3d —, 2020 Tenn. App. LEXIS 160 (Tenn. Ct. App. Apr. 15, 2020).

In a conservatorship action in which an attorney ad litem was appointed to represent respondent, the trial court did not have discretion to charge any portion of the attorney ad litem's fees to any party but respondent pursuant to T.C.A. § 34-1-125(b) because fees of an attorney ad litem were not listed as allowable costs under Tenn. R. Civ. P. 54.04; and the legislature's specific statutory mandate in T.C.A. § 34-1-125(b) to charge the cost of the attorney ad litem to respondent would prevail over the general provisions in Tenn. R. Civ. P. 17.03 and 54.04. In re Allen, — S.W.3d —, 2020 Tenn. App. LEXIS 160 (Tenn. Ct. App. Apr. 15, 2020).

Collateral References.

Excessiveness or adequacy of attorneys' fees in domestic relations cases. 57 A.L.R.3d 550.

Amount of attorneys' fees in matters involving domestic relations. 17 A.L.R.5th 366.

34-1-126. Finding of disablement and need of assistance prerequisite for appointment of fiduciary.

The court must find by clear and convincing evidence that the respondent is fully or partially disabled and that the respondent is in need of assistance from the court before a fiduciary can be appointed.

Acts 1992, ch. 794, § 27; T.C.A. § 34-11-126.

Attorney General Opinions. There is no conflict between the surrogate decision making provisions of Title 33 and the conservatorship provisions of Title 34 with respect to the standard used to determine whether an individual is able to make his or her life choices, OAG 05-157 (10/14/05), 2005 Tenn. AG LEXIS 159.

NOTES TO DECISIONS

1. Disablement.

For the purposes of T.C.A. §§ 34-1-126 and 34-1-101(7), the record contained clear and convincing evidence that the widow was a disabled person who was in need of a conservator's supervision, protection, and assistance because the medical and psychological testimony, coupled with the lay testimony, painted a clear and compelling picture that the elderly widow's functional and decision-making capacities were significantly impaired and that the widow's mental state was on deteriorating course with no reasonable prospect for improvement; thus, the trial court erred in declining to appoint a conservator for the widow. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

Trial court did not err in appointing a patient a conservator because the evidence clearly and convincingly supported its ultimate conclusion that the patient was an individual with disabilities, and it was in his best interest to have a conservator appointed; a licensed psychiatrist who was the attending physician for the patient testified that she did not believe the patient would be able to visit a pharmacy and obtain his medication, shop for groceries, or pay his bills. In re Bartlett, — S.W.3d —, 2015 Tenn. App. LEXIS 954 (Tenn. Ct. App. Dec. 4, 2015).

2. Findings.

Trial court's order did not contain sufficient findings of fact and conclusions of law to enable meaningful appellate review, and the order did not contain findings in accordance the statute and contained virtually no discussion as to why a conservator was needed, and there was no meaningful discussion of the individual's decision-making capacity, plus there was no indication the trial court imposed a conservatorship that complied with the statutory standard; the order was also devoid of any analysis discussing what is in the best interest of the individual, and the order was vacated. In re Ayers, — S.W.3d —, 2015 Tenn. App. LEXIS 507 (Tenn. Ct. App. June 24, 2015).

3. Necessity of Conservator.

Trial court correctly determined that respondent would not need a conservator; while it was asserted that respondent's decision to sell certain property was unwise, respondent's decision was not based on deranged or delusional reasoning or irrational beliefs. To the contrary, respondent showed that, despite his disability, he was capable of managing his remaining assets, consisting of a life estate, a tractor, and a truck, without the court's assistance. In re Conservatorship of Perry, — S.W.3d —, 2020 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 29, 2020).

34-1-127. Least restrictive alternative to be imposed.

The court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the person with a disability that are consistent with adequate protection of the person with a disability and the property of the person with a disability.

Acts 1992, ch. 794, § 28; T.C.A. § 34-11-127; Acts 2013, ch. 435, §§ 42, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Least Restrictive Alternatives.

34-1-128. Duties of court clerk — Records — Index — Deadlines — Notices and summons.

The clerk shall maintain on all guardianship and conservatorship cases the same type docket books, files, minute books, and other records as in all other cases. In addition, the clerk shall maintain an appropriate index or tickler so that reporting deadlines established in §§ 34-1-110 and 34-1-111 and the like are easily ascertainable. The clerk shall issue the notices and summons described in §§ 34-1-110 and 34-1-111 to each delinquent fiduciary.

Acts 1992, ch. 794, § 29; T.C.A. § 34-11-128.

Cross-References. Duties of county clerk, § 18-6-106.

Proceedings by sureties to be released, title 29, ch. 33.

34-1-129. Letters of conservatorship or guardianship — Limited.

Upon the entry of the order appointing a fiduciary and the submission of a bond consistent with the order, the clerk shall issue letters of conservatorship or letters of guardianship. The letters of conservatorship or guardianship shall either:

Recite the specific powers removed from the minor or person with a disability and transferred to the fiduciary; or
Have attached to them the order or orders of the court specifying the powers removed from the minor or person with a disability and transferred to the fiduciary. If the fiduciary has been granted less than full authority over the person and property of the minor or person with a disability in the order of appointment, the clerk shall mark the letters prominently with the term “LIMITED”.

Acts 1992, ch. 794, § 30; T.C.A. § 34-11-129; Acts 2013, ch. 435, § 23.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Construction With Other Sections.

This provision is in tension with § 34-13-107 (now § 34-3-107), applying specifically to conservatorships, which limits every conservatorship to those powers specifically enumerated in the order authorizing the conservatorship. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

2. Authority to File Bankruptcy.

This section does not imply an unspecified authority to file a bankruptcy petition. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

34-1-130. Forms or instructions — Inventory, receipts and expenditures.

The clerk may prescribe forms or instructions as to the manner in which a fiduciary may render its inventory, receipts, and expenditures.

Acts 1992, ch. 794, § 31; T.C.A. § 34-11-130.

34-1-131. Examination of annual accounting — Report to judge.

The clerk shall examine the annual accounting of the fiduciary and make a report on the accounting to the judge.

Acts 1992, ch. 794, § 32; T.C.A. § 34-11-131.

34-1-132. Appointment of emergency guardian or conservator.

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.
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.
Appointment of an emergency guardian or conservator, with or without notice, is not a determination of the respondent's incapacity.
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.
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.

Acts 2013, ch. 435, § 24.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which enacted this section, shall apply to actions commenced on or after July 1, 2013.

34-1-133. Expedited limited healthcare fiduciary.

If the respondent is under hospitalization in a hospital as those terms are defined in title 68, chapter 11, part 2, and no other person, including an agent acting under the Healthcare Decision Act, compiled in title 68, chapter 11, part 18, 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 under 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 § 34-1-108 or the number of days before appointment of a guardian ad litem under § 34-1-107 or other time periods, but shall not vary requirements as necessary to determine the respondent is in need of a fiduciary.
The court shall hold a hearing on the appropriateness of the appointment within five (5) days of the appointment.
Appointment of an expedited limited healthcare fiduciary is not a determination of the respondent's incapacity.
The court may remove an expedited limited healthcare fiduciary at any time.
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.

Acts 2013, ch. 435, § 47.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which enacted this section, shall apply to actions commenced on or after July 1, 2013.

Chapter 2
Guardianship Generally

34-2-101. Actions for appointment of guardian — Where brought.

Actions for the appointment of only a guardian of the person may be brought in the juvenile court in the county in which there is venue. Actions for the appointment of a guardian of the person or property or both may be brought in a court exercising probate jurisdiction or any other court of record in the county in which there is venue.
An action for the appointment of a guardian may be brought in the county of residence of the minor, the county of residence of the minor's parents or, if the minor's parents are living apart, the county of residence of the custodial parent.

Acts 1992, ch. 794, § 34; T.C.A. § 34-12-101.

Compiler's Notes. Former §§ 34-2-101 — 34-2-115, 34-2-201 — 34-2-206 (Code 1858, § 2489 (deriv. Acts 1847-1848, ch. 115), § 2491 (deriv Acts 1823, ch. 2, § 1), § 2492 (deriv. Acts 1762, ch. 5, § 2), § 2493 (deriv. Acts 1762, ch. 5, § 5), § 2494 (deriv. Acts 1762, ch. 5, § 5; 1847-1848, ch. 167), § 2495 (deriv. Acts 1845-1846, ch. 14, §§ 1, 3; 1845-1846, ch. 190), § 2496 (deriv. Acts 1845-1846, ch. 190), §§ 2497, 2498 (deriv. Acts 1845-1846, ch. 14, §§ 2, 4); §§ 2499-2501 (deriv. Acts 1841-1842, ch. 117, §§ 1, 3), §§ 2502-2504 (deriv. Acts 1831, ch. 29, §§ 1, 2, 4); Acts 1859-1860, ch. 90, §§ 4-6; Shan., §§ 4250, 4252-4255, § 4258-4270; mod. Code 1932, §§ 8467-8471, 8474-8488; Acts 1951, ch. 148, §§ 1, 2 (Williams, §§ 8476, 8476.1); 1953, ch. 156, § 1; Acts 1972, ch. 612, § 4; T.C.A. (orig. ed.), §§ 34-301 — 34-306; impl. am. Acts 1975, ch. 219, § 1; Acts 1982, ch. 853, § 4; T.C.A. (orig. ed.), §§ 34-201 — 34-216; Acts 1987, ch. 322, § 21; 1989, ch. 591, § 113; 1991, ch. 181, § 3., concerning guardians generally and testamentary guardians, were repealed by Acts 1992, ch. 794, § 33, effective January 1, 1993.

Acts 1992, ch. 794, § 51 provided that nothing in this chapter shall be construed to authorize a corporation, partnership, association, or other business entity to be appointed as a fiduciary unless such corporation, partnership, association or other business entity is otherwise authorized by law to exercise such authority.

Acts 1992, ch. 794, § 52 provided that for each existing guardian or conservator, this chapter shall be effective for any act required to be done by the fiduciary and due on or after January 1, 1993; and that each existing limited guardian shall become a guardian or conservator as the case may be, with limited powers on January 1, 1993.

Cross-References. Restrictions on appointment of nonresident guardian, § 35-50-107.

Rule Reference. This part is referred to in Rule 2 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Pritchard on Wills and Administration of Estates (5th ed., Phillips and Robinson), §§ 78, 1039.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-503, 4-505, 4-506.

Law Reviews.

Changes in Tennessee's Guardianship and Conservatorship Statute (Mary D. Colley and Colleen P. Mac Lean), 29 No. 1 Tenn. B.J. 14 (1993).

Survey of the New Tennessee Guardianship and Conservatorship Act, 60 Tenn. L. Rev. (1993).

Attorney General Opinions. Guardianships for undocumented alien minors. OAG 14-84, 2014 Tenn. AG LEXIS 87 (9/16/14).

NOTES TO DECISIONS

1. Valid Order.

Order of financial guardianship entered by the juvenile court was not void on its face and could not be attacked in a collateral proceeding, despite the order's errors and irregularities, because venue was properly established, the juvenile court was a “court of record,” and the orders corresponded with the petitions filed by a minor's half-sister requesting her appointment as guardian; an insurer was entitled to rely upon the juvenile court's facially valid order authorizing disbursement of proceeds. Hood v. Jenkins, 432 S.W.3d 814, 2013 Tenn. LEXIS 1009 (Tenn. Dec. 19, 2013).

2. Jurisdiction.

Chancery court had jurisdiction to make a finding whether it was in the best interest of a minor child to be returned to the child's home country of Guatemala, and the petition by the child's uncle for the appointment of a guardian for the child specifically requested a finding as to the issue. Therefore, as the chancery court mistakenly found that it did not have jurisdiction, remand of the case to the court for the court to make a determination of whether it was in the child's best interest to be returned to Guatemala was appropriate. In re Domingo C.L., — S.W.3d —, 2017 Tenn. App. LEXIS 590 (Tenn. Ct. App. Aug. 30, 2017).

34-2-102. Petition for appointment of guardian — Who may file.

A petition for the appointment of a guardian may be filed by any person having knowledge of the circumstances necessitating the appointment of a guardian.

Acts 1992, ch. 794, § 35; T.C.A. § 34-12-102.

NOTES TO DECISIONS

1. Best Interest.

Trial court erred in dismissing a mother's petition seeking an order appointing her as a guardian of her daughter, who was an undocumented minor born in Honduras, because there was no statutory bar to declaring the mother the legal guardian of the daughter; both the mother and the father were “joint natural guardians” of their daughter, and the mother alleged on behalf of the daughter that it was not in her best interest to be returned to Honduras to a father who allegedly abandoned her. In re Danely C., — S.W.3d —, 2017 Tenn. App. LEXIS 773 (Tenn. Ct. App. Nov. 29, 2017).

34-2-103. Priority of persons to be considered.

Subject to the court's determination of what is in the best interests of the minor, the court shall consider the following persons in the order listed for appointment of the guardian:

The parent or parents of the minor;
The person or persons designated by the parent or parents in a will or other written document;
Adult siblings of the minor;
Closest relative or relatives of the minor; and
Other person or persons.

Acts 1992, ch. 794, § 36; T.C.A. § 34-12-103.

NOTES TO DECISIONS

1. Priority.

Judgment naming grandparents as the guardians of a child was affirmed because the grandparents had priority pursuant to T.C.A. § 34-2-103 as the deceased father left no valid will and the evidence on the best interest analysis under T.C.A. § 36-6-106 pointed to the grandparents remaining as the child's guardians. In re R.D.M., 306 S.W.3d 731, 2009 Tenn. App. LEXIS 556 (Tenn. Ct. App. Aug. 18, 2009), appeal denied, In re Rory M., — S.W.3d —, 2010 Tenn. LEXIS 338 (Tenn. Mar. 1, 2010).

2. Trial Procedure.

3. Best Interest.

34-2-104. Petition for appointment — Sworn — Contents.

The petition for the appointment of a guardian, which shall be sworn, should contain the following:

The name, date of birth, residence and mailing address of the minor;
The name, age, residence and mailing address and relationship of the petitioner;
The name, age, mailing address and relationship of the proposed guardian and, if the proposed guardian is other than the petitioner, a statement signed by the proposed guardian acknowledging awareness of the petition and willingness to serve;
The name, mailing address and relationship of the closest relative or relatives of the minor and the name and mailing address of the present custodian of the minor who should be notified of the proceedings. If the respondent has no then living parent or sibling, the petition shall so state and more remote relatives are not to be listed;
An explanation of the reason for seeking appointment of a guardian; and
If the petition requests the guardian manage the property of the respondent, the petition also shall contain:
1. If the financial information about the minor is known to the petitioner:
  1. A list of the property of the minor together with the approximate fair market value of each item. The petitioner shall state whether the property listed is all of the minor's property;
  2. A list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue received by the minor;
  3. A list of the usual monthly expenses of the minor. The petitioner shall include an explanation of how these expenditures were met prior to the filing of the petition; and
  4. A description of the proposed plan for the management of the minor's property if a guardian is appointed; or
2. If the financial information about the minor is unknown to the petitioner, a request that the court enter an order authorizing the petitioner to investigate the respondent's property.

Acts 1992, ch. 794, § 37; T.C.A. § 34-12-104; Acts 2003, ch. 35, § 1.

Law Reviews.

Storied Anna Mae He Decision Clarifies Law But Leaves Unanswered Questions (Christina A. Zawisza), 38 U. Mem. L. Rev. 637 (2008).

34-2-105. Where guardian needed — Court order.

If the court determines a guardian is needed, the court shall enter an order which shall:

Name the guardian or guardians;
If the guardian is to manage the property of the minor, then:
1. Set the amount of the guardian's bond unless waived as authorized in § 34-1-105;
2. Set forth the nature and frequency of each approved expenditure and prohibit the guardian from making other expenditures without court approval;
3. Set forth the approved management of the minor's property; and
4. Prohibit the sale of any property except as permitted by § 34-1-116 without court approval or as permitted in the property management plan approved by such order; and
State any other authority or direction as the court determines is appropriate to properly care for the person and property of the minor.

Acts 1992, ch. 794, § 38; T.C.A. § 34-12-105.

NOTES TO DECISIONS

1. Sufficient Order.

Insurer did not breach its contractual duties by entrusting life insurance proceeds to a minor's financial guardian even though the order of financial guardianship was “woefully deficient” because the insurer was entitled to rely upon the juvenile court's facially valid order authorizing disbursement of the proceeds and, prior to payment, the insurer acted in good faith by conducting an investigation into the adequacy of the documentation of the juvenile court's order. Hood v. Jenkins, 432 S.W.3d 814, 2013 Tenn. LEXIS 1009 (Tenn. Dec. 19, 2013).

2. Jurisdiction.

3. Best Interest.

34-2-106. Minor attaining eighteen (18) years of age — Termination or continuation of guardianship.

Except as provided in subsection (c), when the minor for whom a guardian of the person is serving reaches the age of eighteen (18) years of age, the guardianship of the person of the minor shall terminate.
1. When the minor for whom a guardian of the estate of the minor is serving reaches eighteen (18) years of age, the guardianship shall terminate.
2. Any interested person, including, but not limited to, the guardian of the estate of the minor, may, not more than ninety (90) days before the minor reaches eighteen (18) years of age and not later than the filing of the preliminary final accounting, petition the court to continue the guardianship for a period of time not to extend beyond the person's twenty-fifth birthday. A copy of the petition shall be served on the minor or it must be shown that the minor has actual notice of the filing of the petition.
3. The burden of demonstrating why the guardianship of the estate of such person should continue shall be on the person seeking the continuation of the guardianship. In determining whether to terminate the guardianship, the court shall consider whether the termination is in the best interest of the person, and the court shall consider the ability of the person to wisely manage and control the property irrespective of whether special needs exist. If the court so finds, the court shall continue the guardianship for a longer period of time not to extend beyond the person's twenty-fifth birthday. The court may permit either the payment of a portion of the estate or the establishment of a distribution schedule upon request of any party. If the court does not continue the guardianship, in the discretion of the court the minor may receive attorneys' fees from the person petitioning the court for continuation of the guardianship.
4. Within sixty (60) days after the guardianship of the estate of the person terminates, the guardian shall file a preliminary final accounting with the court, which shall account for all assets, receipts and disbursements from the date of the last accounting until the date the guardianship of the estate terminates, and shall detail the amount of the final distribution to close the guardianship of the estate of the person. If no objections have been filed to the clerk's report on the preliminary final accounting within thirty (30) days from the date the clerk's report is filed, the guardian shall distribute the remaining assets. The receipts and final cancelled checks evidencing the final distribution shall be filed with the court by the guardian. When the evidence of the final distribution is filed with the court, and on order of the court, the guardianship proceeding for the estate of the person shall be closed. A final accounting may not be waived by the minor for whom the guardian of an estate is serving regardless of the age of the minor.
If a minor for whom a guardian of the person or estate is serving has previously been determined to be a disabled person, when the minor reaches eighteen (18) years of age, the guardian shall automatically continue as conservator. If the guardian is the department of children's services, this subsection (c) shall not apply.

Acts 1992, ch. 794, § 39; 1994, ch. 855, § 13; 1996, ch. 1015, § 1; 1996, ch. 1079, § 67; T.C.A. § 34-12-106.

Compiler's Notes. Acts 1996, ch. 1079, § 184 provided:

“Any provision of this act, or the application thereof, which is inconsistent with federal law, rule or regulation shall be deemed to be construed as being consistent with federal law, rule or regulation.”

Cross-References. Receipt for legacy or share, § 30-2-707.

Law Reviews.

Non-Tax Aspects of Estate Planning (Ronald Lee Gilman), § 2 Mem. St. U.L. Rev. 41 (1972).

1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce), 32 No. 6 Tenn. B.J. 12 (1996).

Chapter 3
Conservatorship Generally

34-3-101. Action for appointment of conservator — Where brought.

Actions for the appointment of a conservator may be brought in a court exercising probate jurisdiction or any other court of record of any county in which there is venue.
An action for the appointment of a conservator shall be brought in the county of residence of the alleged person with a disability.
Nothing in this title shall be construed to supersede the Tennessee Adult Protection Act, compiled in title 71, chapter 6, part 1, or the orders of the court pursuant to such act.

Acts 1992, ch. 794, § 41; T.C.A. § 34-13-101; Acts 2013, ch. 435, §§ 1, 46.

Compiler's Notes. Former §§ 34-3-101 — 34-3-120, 34-3-201 — 34-3-227, 34-3-301 — 34-3-304, 34-3-401 — 34-3-413 (Code 1858, §§ 2506, 2508-2515, § 2516 (deriv. Acts 1789, ch. 39, § 5), § 2517, § 2518 (deriv. Acts 1789, ch. 39, § 5), 2519, 2520, 2521 (deriv. Acts 1762, ch. 5, §§ 3, 10-13, 15-17), § 2521 (deriv. Acts 1762, ch. 5, §§ 4, 9, 15, 16; 1831, ch. 29, § 1; 1841-1842, ch. 117, § 1; 1853-1854, ch. 53, § 6), § 2522 (deriv. Acts 1762, ch. 5, § 24), §§ 2523-2532 (deriv. Acts 1762, ch. 5, §§ 9, 15, 18, 19; 1831, ch. 30, §§ 1, 2; 1841-1842, ch. 24, § 5; 1841-1842, ch. 117, §§ 1, 2), §§ 2533-2543 (deriv. Acts 1829, ch. 6, § 1; 1843-1844, ch. 122, §§ 1, 2; 1849-1850, ch. 27, §§ 1, 2; 1849-1850, ch. 34, §§ 1-3; 1851-1852, ch. 141, § 7; 1851-1852, ch. 149, §§ 1-4, 6);§§ 2544, 2545 (deriv. Acts 1853-1854, ch. 49, §§ 5, 6); § 2546 (deriv. Acts 1851-1852, ch. 141, § 6); §§ 3323-3339, §§ 3716-3719 (deriv. Acts 1851-1852, ch. 57, §§ 1, 4), § 4053 (deriv. Acts 1851-1852, ch. 156, § 4), § 4055; Acts 1871, ch. 113, § 1; 1887, ch. 245, § 1; Acts 1895, ch. 34, §§ 1-3; 1897, ch. 97; 1901, ch. 146, §§ 1, 2; 1915, ch. 143, § 1; 1919, ch. 148, § 1; Shan., §§ 4272-4278, 4280, 4281a1, 4281a2, 4282-4289, 4291-4303, 4303 a1, 4304-4320, 5072-5088, 5486-5490, 5868. 5870; Shan. Supp., § 4301a1; mod. Code 1932, §§ 8088, 8489-8496, 8498, 8499, 8501-8540, 9227-9243, 9647-9651, 10069, 10071; Acts 1951, ch. 24, §§ 1-4 (Williams, §§ 9395.1-9395.4); 1968, ch. 506, § 1; modified; T.C.A. (orig. ed.), §§ 34-401 — 34-410, 34-412 — 34-422, 34-1101 — 34-1104; Acts 1985, ch. 140, § 31; 1989, ch. 591, § 113), concerning management of estate generally, were repealed by Acts 1992, ch. 794, § 40, effective January 1, 1993.

Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Law Reviews.

Changes in Tennessee's Guardianship and Conservatorship Statute (Mary D. Colley and Colleen P. Mac Lean), 29 No. 1 Tenn. B.J. 14 (1993).

Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee (Tricia M. York), 36 U. Mem. L. Rev. 491 (2006).

Survey of the New Tennessee Guardianship and Conservatorship Act, 60 Tenn. L. Rev. (1993).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

NOTES TO DECISIONS

1. Constitutionality.

2. Construction and Interpretation.

The word “friend” need not be construed as a social acquaintance or constant companion, but it may also embrace one who befriends or acts “in the interests” of the affected person; the comparable expression in the former kindred Limited Guardianship Act is “any interested person” found in former § 34-4-104 [repealed; see now § 34-3-102]. In re Rockwell, 673 S.W.2d 512, 1983 Tenn. App. LEXIS 687 (Tenn. Ct. App. 1983).

The language that the petition may be brought by “one or more of his friends or relatives” is understandably broad because the paramount concern is the welfare of the allegedly incapacitated individual. In re Rockwell, 673 S.W.2d 512, 1983 Tenn. App. LEXIS 687 (Tenn. Ct. App. 1983).

The very simple statutory procedure for contesting incompetency by the ward of a conservatorship affords adequate procedural due process and the statutes do not unjustifiably restrict a ward's liberty in violation of substantive due process or the right to equal protection. State ex rel. McCormick v. Burson, 894 S.W.2d 739, 1994 Tenn. App. LEXIS 622 (Tenn. Ct. App. 1994).

The term “county of residence” means the county of the disabled person's legal residence or domicile and Tennessee courts cannot exercise personal jurisdiction in proceedings to appoint a conservator over disabled persons who just happen to be within their territorial jurisdiction. Salvatore v. Clayton (In re Clayton), 914 S.W.2d 84, 1995 Tenn. App. LEXIS 614 (Tenn. Ct. App. 1995).

Relatives were appointed co-conservators of the ward where, under T.C.A. § 34-3-101, the ward did not abandon his ties to Davidson County by living in Kentucky for approximately two weeks upon his marriage; there was nothing in the record suggesting that the ward changed his domicile from Tennessee to Kentucky. In re Ackerman, 280 S.W.3d 206, 2008 Tenn. App. LEXIS 427 (Tenn. Ct. App. July 29, 2008).

3. Federal Law.

4. Jurisdiction.

Trial court was correct in dismissing a daughter's petition seeking the appointment of a conservator for her mother because it lacked subject matter jurisdiction over the mother, who was domiciled in California; the mother was a domiciliary of California and not Roane County, Tennessee, and when she left California and took up residence with the daughter she did not have the requisite intent either to abandon the old domicile or to acquire a new one; In re Proposed Conservatorship of Mary F. Stratton, — S.W.3d —, 2013 Tenn. App. LEXIS 491 (Tenn. Ct. App. July 31, 2013).

5. Priority in Appointment.

No definite priority is established for the appointment of any particular person or relative, but the designation is left to the discretion of the court, the best interests of the ward being the paramount consideration. In re Rockwell, 673 S.W.2d 512, 1983 Tenn. App. LEXIS 687 (Tenn. Ct. App. 1983) (decision under prior law).

6. Hearing.

7. Appeal.

Ward had the right to appeal from any erroneous action of the chancellor, but could not collaterally attack a valid decree. Tate v. Ault, 771 S.W.2d 416, 1988 Tenn. App. LEXIS 844 (Tenn. Ct. App. 1988) (decision under prior law).

34-3-102. Petition for appointment of conservator — Who may file.

A petition for the appointment of a conservator may be filed by any person having knowledge of the circumstances necessitating the appointment of a conservator.

Acts 1992, ch. 794, § 42; T.C.A. 34-13-102.

NOTES TO DECISIONS

1. Standing.

In a conservatorship proceeding where the brother-in-law sought to be appointed conservator over the elderly widow and the widow's nieces contested the appointment and filed their own petition for one of them to be appointed the widow's conservator, the brother-in-law and the nieces had standing to file a petition because they had knowledge of the widow's circumstances as required by T.C.A. § 34-3-102. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

34-3-103. Priority of persons to be considered for appointment.

Subject to the court's determination of what is in the best interests of the person with a disability, the court shall consider the following persons in the order listed for appointment of the conservator:

The person or persons designated in a writing signed by the alleged person with a disability;
The spouse of the person with a disability;
Any child of the person with a disability;
Closest relative or relatives of the person with a disability;
A district public guardian as described by § 34-7-104; and
Other person or persons.

Acts 1992, ch. 794, § 43; T.C.A. § 34-13-103; Acts 2013, ch. 435, § 36.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

34-3-104. Petition for appointment — Sworn — Contents.

The petition for the appointment of a conservator, which shall be sworn, should contain the following:

The name, date of birth, residence and mailing address of the respondent;
A description of the nature of the alleged disability of the respondent;
The name, age, residence and mailing address of the petitioner, a statement of the relationship of the petitioner to the respondent, and a statement of any felony or misdemeanor convictions of the petitioner, if any;
The name, age, mailing address, relationship of the proposed conservator and a statement of any felony or misdemeanor conviction of the proposed conservator and, if the proposed conservator is not the petitioner, a statement signed by the proposed conservator acknowledging awareness of the petition and a willingness to serve;
The name, mailing address and relationship of the closest relative or relatives of the respondent and the name and mailing address of the person or institution, if any, having care and custody of the respondent or with whom the respondent is living. If the respondent has no then living spouse, child, parent or sibling, the petition shall so state and more remote relatives are not to be listed;
A summary of the facts supporting the petitioner's allegation that a conservator is needed;
The name of the respondent’s physician or, where appropriate, respondent’s psychologist or senior psychological examiner and either:
1. A sworn examination report described in § 34-3-105(c);
2. A statement that the respondent has been examined but the sworn examination report has not been received but will be filed before the hearing; or
3. A statement that the respondent refuses to be examined voluntarily, with a request that the court direct the respondent to submit to medical examination;
The rights of the respondent to be removed from the respondent and transferred to the conservator. The rights the court may remove may include, but are not limited to, the right to vote, dispose of property, execute instruments, make purchases, enter into contractual relationships, hold a valid Tennessee driver license, give or refuse consent to medical and mental examinations and treatment or hospitalization, or do any other act of legal significance the court deems necessary or advisable;
If the petition requests the conservator to manage the property of the respondent, the petition also shall contain:
1. If the financial information about the respondent is known to the petitioner:
  1. A list of the property of the respondent, together with the approximate fair market value of each item and a statement whether the property listed is all of the respondent's property;
  2. A list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue received by the respondent;
  3. A list of the usual monthly expenses of the respondent and an explanation of how these expenditures were met prior to the filing of the petition;
  4. A description of the proposed plan for the management of the respondent's property if a conservator is appointed; or
2. If the financial information about the respondent is unknown to the petitioner, a request that the court enter an order authorizing the petitioner to investigate the respondent's property; and
A request for a guardian ad litem, conservator or co-conservator, or attorney ad litem with specific experience or expertise in matters like those faced by the respondent, if warranted under the circumstances.

Acts 1992, ch. 794, § 44; 1994, ch. 855, § 14; T.C.A. § 34-13-104; Acts 2003, ch. 124, § 1; 2012, ch. 807, § 1; 2012, ch. 917, § 2; 2013, ch. 435, §§ 25, 26.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

In each of the situations where the law provides that a person may give consent for another, it is the disabled person or the incompetent or the child who is actually the patient and who is at risk of suffering harm. Miller v. Dacus, 231 S.W.3d 903, 2007 Tenn. LEXIS 648 (Tenn. Aug. 17, 2007).

2. Finality of Order.

Although petitioner argued a 2006 order granting conservatorship and removing a decedent's right to make a will was void because the probate court lacked authority to do so under T.C.A. § 34-3-104(8), no appeal was taken from the order under T.C.A. § 34-3-106 or T.R.A.P. 3, the order became final 30 days after its entry, and the appellate court lacked jurisdiction to review the order; the probate court properly dismissed petitioner's request to be named personal representative and to have a holographic will probated. In re Estate of Rinehart, 363 S.W.3d 186, 2011 Tenn. App. LEXIS 616 (Tenn. Ct. App. Nov. 15, 2011), appeal denied, — S.W.3d —, 2012 Tenn. LEXIS 196 (Tenn. Mar. 7, 2012).

34-3-105. Examination, physical, psychological or otherwise, of respondent.

If the respondent has been examined by a physician or, where appropriate, a psychologist or senior psychological examiner not more than ninety (90) days prior to the filing of the petition and the examination is pertinent, the report of the examination shall be submitted with the petition. If the respondent has not been examined within ninety (90) days of the filing of the petition, cannot get out to be examined or refuses to be voluntarily examined, the court shall order the respondent to submit to examination by a physician or, where appropriate, a psychologist or senior psychological examiner identified in the petition as the respondent's physician, psychologist or senior psychological examiner or, if the respondent has no physician, psychologist or senior psychological examiner, a physician, psychologist or senior psychological examiner selected by the court. The physician, psychologist or senior psychological examiner, on completing the examination, shall send a sworn written report to the court with copies to the petitioner and the guardian ad litem. The physician's, psychologist's or senior psychological examiner's report shall be made a part of the court record.
On motion by the petitioner, the respondent, the adversary counsel, the guardian ad litem, or on its own initiative, the court may order the respondent to submit to examination by such physicians, psychologists, senior psychological examiners or other specialists who have expertise in the specific disability of the respondent. The examiner shall send a sworn written report to the court with copies to the petitioner, the guardian ad litem and the person requesting the second examination. The court may assess the cost of the second examination against the property of the person with a disability or against the person requesting the examination.
Each physician's, psychologist's or senior psychological examiner's sworn report shall contain the following:
1. The respondent's medical history; provided, that this subdivision (c)(1) shall not be construed to expand the examiner's scope of practice;
2. A description of the nature and type of the respondent's disability;
3. An opinion as to whether a conservator is needed and the type and scope of the conservator with specific statement of the reasons for the recommendation of conservatorship; and
4. Any other matters as the court deems necessary or advisable.
The examiner's sworn report shall be prima facie evidence of the respondent's disability and need for the appointment of a fiduciary unless the report is contested and found to be in error.
If upon an additional finding that the person with a disability poses a threat to self or others in accordance with the mental health law, title 33, a court of competent jurisdiction may order a commitment to involuntary care and treatment.

Acts 1992, ch. 794, § 45; T.C.A. § 34-13-105; Acts 2012, ch. 807, § 2; 2013, ch. 435, §§ 27, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

NOTES TO DECISIONS

1. Appeal.

2. Sufficiency of Evidence.

34-3-106. Rights of respondent.

The respondent has the right to:

On demand by respondent or the guardian ad litem, a hearing on the issue of 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;
Appeal the final decision on the petition with the assistance of an attorney ad litem or adversary counsel;
Attend any hearing;
Have an attorney ad litem appointed to advocate the interests of the respondent; and
Request a protective order placing under seal the respondent's health and financial information, including reports provided under § 34-3-105(c).

Acts 1992, ch. 794, § 46; 1996, ch. 1015, § 2; T.C.A. § 34-13-106; Acts 2013, ch. 435, § 28; 2014, ch. 799, § 1.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Law Reviews.

A Quantum Leap for Ethical Guidance: Comparison of the Model Code and Rule 1.14 of the Proposed Rules of Professional Conduct (Donna S. Harkness), 35 No. 11 Tenn. B.J. 20 (1999).

NOTES TO DECISIONS

1. Right to Final Decision.

34-3-107. Where conservator needed — Court order — Consent.

If the court determines a conservator is needed, the court shall enter an order which shall:
1. Name the conservator or co-conservators and, in the court's discretion, a standby conservator or co-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:
  1. The right to give, withhold, or withdraw consent and make other informed decisions relative to medical and mental examinations and treatment;
  2. The right to make end of life decisions:
    1. 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
    2. To consent or withhold consent concerning the withholding or withdrawal of artificially provided food, water, or other nourishment or fluids;
  3. 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;
  4. The right to consent to participate in activities and therapies which are reasonable and necessary for the habilitation of the respondent;
  5. The right to consent or withhold consent to any residential or custodial placement;
  6. The power to give, receive, release, or authorize disclosures of confidential information;
  7. The right to apply for benefits, public and private, for which the person with a disability may be eligible;
  8. The right to dispose of personal property and real property subject to statutory and judicial constraints;
  9. The right to determine whether or not the respondent may utilize a Tennessee driver license for the purpose of driving;
  10. The right to make purchases;
  11. The right to enter into contractual relationships;
  12. The right to execute instruments of legal significance;
  13. The right to pay the respondent's bills and protect and invest the respondent's income and assets;
  14. The right to prosecute and defend lawsuits;
  15. The right to execute, on behalf of the respondent, any and all documents to carry out the authority vested above; and
  16. 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:
  1. Set the amount of the conservator's bond unless waived as authorized in § 34-1-105;
  2. Set the nature and frequency of each approved expenditure and prohibit the conservator from making other expenditures without court approval;
  3. Set forth the approved management of the property of the person with a disability; and
  4. 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 person with a disability.
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.
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.

Acts 1992, ch. 794, § 47; T.C.A. § 34-13-107; Acts 2013, ch. 435, §§ 29, 30, 37, 43, 46; 2014, ch. 799, § 2; 2016, ch. 1062, §§ 2, 4.

Compiler's Notes. Acts 2016, ch. 1062, § 1, as amended by Acts 2017, ch. 24, § 1, provided that the act shall be known and may be cited as the “Falk Act.”

Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Amendments. The 2016 amendment added (a)(2)(P) and (c).

Effective Dates. Acts 2016, ch. 1062, § 5. May 16, 2016.

NOTES TO DECISIONS

1. Construction With Other Sections.

While co-conservators could rely on the catch-all provision in § 35-50-110(33) in order to exercise the necessary judgment to do what they believe to be in the conservatee's best interest with respect to the powers transferred to them by order, they may not use that provision to expand the powers transferred to them beyond those specifically mentioned in the order in contravention of this section [transferred from § 34-13-107]. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

The “limitation” statute, appearing at § 34-11-129 (now § 34-1-129), which applies generally to both guardianships and conservatorships, is in tension with this section [transferred from § 34-13-107] which limits every conservatorship to those powers specifically enumerated in the order authorizing the conservatorship. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

Order did give the conservator the authority to “do any other act of legal significance which the trial court, at any time in the future, might have deemed necessary or advisable”; that “catch-all” provision included the filing and maintaining of an annulment action, as such an action was clearly an “act of legal significance.” Nave v. Nave, 173 S.W.3d 766, 2005 Tenn. App. LEXIS 179 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 904 (Tenn. Oct. 17, 2005).

2. Authority to File Bankruptcy.

Incompetent persons are eligible for voluntary bankruptcy relief and a court-appointed guardian or conservator may file a voluntary bankruptcy petition on behalf of an incompetent person if the guardian or conservator is authorized to do so. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

Court dismissed bankruptcy petition on behalf of incompetent person filed by conservator because this section mandates that all powers not specifically transferred to a conservator are retained by the conservatee and there had been no specific transfer of the authority to file a bankruptcy petition. In re Buda, 252 B.R. 125, 2000 Bankr. LEXIS 904 (Bankr. E.D. Tenn. 2000).

3. Disabled Person.

For the purposes of T.C.A. §§ 34-1-126 and 34-1-101(7), the record contained clear and convincing evidence that the widow was a disabled person who was in need of a conservator's supervision, protection, and assistance because the medical and psychological testimony, coupled with the lay testimony, painted a clear and compelling picture that the elderly widow's functional and decision-making capacities were significantly impaired and that the widow's mental state was on deteriorating course with no reasonable prospect for improvement. In re Conservatorship Groves, 109 S.W.3d 317, 2003 Tenn. App. LEXIS 112 (Tenn. Ct. App. 2003).

4. Jurisdiction.

Insofar as objections regarding the conservatee's bank accounts and vehicle could result in claims that could be recovered by the estate, the conservatorship court properly found that the claims raised as objections to the final accounting were to be treated as claims under the exclusive control of the estate's personal representative in probate court. In re Hudson, 578 S.W.3d 896, 2018 Tenn. App. LEXIS 458 (Tenn. Ct. App. Aug. 10, 2018).

5. Conservatorship Order.

Chancery court's order establishing the conservatorship vested plaintiff with the exclusive authority and responsibility to manage and preserve the owner's estate; by charging rent, which defendant refused to pay, plaintiff was attempting to maintain the owner's estate, rather than fundamentally changing the character of it, and thus the trial court did not err in awarding possession of the property to plaintiff for the benefit of the owner. Sullivan v. Kreiling, — S.W.3d —, 2019 Tenn. App. LEXIS 273 (Tenn. Ct. App. May 30, 2019).

34-3-108. Discharge of conservator — Modification of duties — Termination — Final accountings and distribution of assets.

A conservator appointed under this chapter may be discharged or have its duties modified if the court determines that the respondent is no longer a person with a disability, or that it is in the best interests of the person with a disability that the conservatorship be terminated, or that the conservator has failed to perform its duties and obligations in accordance with the law, or that the conservator has failed to act in the best interest of the person with a disability so as to warrant modification or termination. The person with a disability or any interested person on the behalf of the person with a disability may petition the court at any time for a termination or modification order under this section.
A petition under subsection (a), if made by the person with a disability, may be communicated to the court by any means including oral communication or informal letter.
The court, upon receipt of the petition filed under this section, shall conduct a hearing. At the hearing, the person with a disability has all the rights set out in § 34-3-106. Prior to the holding of the hearing, the court may require that the person with a disability submit to an examination as required by § 34-3-105 to support the person with a disability's contention that a conservator is no longer needed.
Upon conclusion of the hearing, the court shall enter an order setting forth the court's findings of fact and may do any of the following:
1. Dismiss the petition;
2. Remove the conservator and dissolve the original order;
3. Remove the conservator and appoint a successor;
4. Modify the original order; or
5. Grant any other relief the court considers appropriate and in the best interest of the person with a disability.
When the person with a disability dies or the court earlier determines a conservator is no longer needed and issues an order terminating the conservatorship, the conservatorship shall terminate. If the conservator has responsibility for the property of the person with a disability, within one hundred twenty (120) days after the date the conservatorship terminates, the conservator shall file a preliminary final accounting with the court, which shall account for all assets, receipts, and disbursements from the date of the last accounting until the date the conservatorship terminates, and shall detail the amount of the final distribution to close the conservatorship. If no objections have been filed to the clerk's report on the preliminary final accounting within thirty (30) days from the date the clerk's report is filed, the conservator shall distribute the remaining assets. The receipts and final cancelled checks evidencing the final distributions shall be filed with the court by the conservator. When the evidence of the final distribution is filed with the court and on order of the court, the conservatorship proceeding shall be closed.
Any person listed in § 34-3-103(1)-(4) may petition the court to require the conservator to grant any of the rights provided in § 34-3-107(a)(2)(P). The prevailing party in a petition under this subsection (f) shall be entitled to court costs and reasonable attorney fees.

Acts 1992, ch. 794, § 48; 1994, ch. 855, § 15; 1996, ch. 880, § 1; T.C.A. § 34-13-108; Acts 2013, ch. 435, §§ 31, 32, 44, 46; 2016, ch. 1062, § 3.

Compiler's Notes. Acts 2016, ch. 1062, § 1, as amended by Acts 2017, ch. 24, § 1, provided that the act shall be known and may be cited as the “Falk Act.”

Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Amendments. The 2016 amendment added (f).

Effective Dates. Acts 2016, ch. 1062, § 5. May 16, 2016.

NOTES TO DECISIONS

1. Application.

Where the probate court had appointed son as conservator for his mother and later determined that it did not have jurisdiction to appoint a conservator, it could require the son to make an accounting upon withdrawal of his authority to act as conservator. Salvatore v. Clayton (In re Clayton), 914 S.W.2d 84, 1995 Tenn. App. LEXIS 614 (Tenn. Ct. App. 1995).

When a mother sought modification of a father's appointment as the parties' disabled son's conservator, it was not an abuse of discretion to limit the mother's supervised visits with the son to eight hours monthly and to let the father record the mother's phone conversations with the son because evidence showed such requirements: (1) ensured the son would not be exposed to the negative effects of the mother's actions; and (2) given the mother's propensity to disobey court orders, ensured such orders would be followed. In re Conservatorship of Turner, — S.W.3d —, 2014 Tenn. App. LEXIS 278 (Tenn. Ct. App. May 9, 2014).

2. Hearing.

3. Removal.

Probate court did not abuse its discretion in removing a conservator because the court found that the conservator actively obstructed, harassed, and intimidated medical and psychiatric personnel in the treatment of the conservator's adult child. In re Taylor, — S.W.3d —, 2017 Tenn. App. LEXIS 166 (Tenn. Ct. App. Mar. 10, 2017), appeal denied, In re Conservatorship of Taylor, — S.W.3d —, 2017 Tenn. LEXIS 431 (Tenn. July 20, 2017).

34-3-109. Support of person with a disability's spouse or minor children.

The appointment of a conservator for a person with a disability does not automatically terminate the duty of the person with a disability to support such spouse or dependent minor children of the person with a disability. The court having jurisdiction over the person with a disability may establish the amount of financial support to which the spouse or dependent minor children are entitled.

Acts 1992, ch. 794, § 49; T.C.A. § 34-13-109; Acts 2013, ch. 435, §§ 45, 46.

Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013.

Chapter 4
Estates of Incompetents [Repealed]

Part 1
Limited Guardianship Proceedings [Repealed]

34-4-101 — 34-4-116. [Repealed.]

Compiler's Notes. Former part 1, §§ 34-4-101 — 34-4-116 (Acts 1979, ch. 366, §§ 1-10; 1980, ch. 499, § 1; 1981, ch. 369, §§ 2-12, 14; 1982, ch. 795, §§ 1, 2; T.C.A. §§ 34-1201 — 34-1210, 34-12-101 — 34-12-110, 34-12-113 — 34-12-118), concerning limited guardianship proceedings, was repealed by Acts 1992, ch. 794, §§ 50, effective January 1, 1993. For new law concerning guardianship and conservatorship, see chs. 1-3 of this title.

Acts 1996, ch. 811, § 2 purported to amend § 34-4-102.

Part 2
Conservatorship [Repealed]

34-4-201 — 34-4-213. [Repealed.]

Compiler's Notes. Former part 2, §§ 34-4-201 — 34-4-213 (Acts 1955, ch. 280, §§ 8-10; 1978, ch. 598, §§ 1, 2; 1980, ch. 499, §§ 1, 4; T.C.A. §§ 34-1015 — 34-1017, 34-12-201 — 34-12-213), concerning conservatorship, was repealed by Acts 1992, ch. 794, § 50, effective January 1, 1993. For new law concerning guardianship and conservatorship, see chs. 1-3 of this title.

Part 3
Dependents of Incompetents [Repealed]

34-4-301 — 34-4-310. [Repealed.]

Compiler's Notes. Former part 3, §§ 34-4-301 — 34-4-310 (Code 1858, §§ 3708-3714 (deriv. Acts 1824, ch. 2, §§ 1-3, 1851-1852, ch. 57, §§ 1, 2, 5), 3715; Shan., §§ 5478-5485; Acts 1927, ch. 28, § 1; Code 1932, §§ 9639-9646; mod. Code 1932, §§ 9652-9654; Acts 1941, ch. 136, § 1; C. Supp. 1950, § 9652; Acts 1959, ch. 209, § 1; impl. am. Acts 1965, ch. 38, §§ 20, 48; impl. am. Acts 1976, ch. 529, § 1; Acts 1979, ch. 366, § 16; 1980, ch. 499, § 3; T.C.A. (orig. ed.) §§ 34-501 — 34-503, 34-505 — 34-512), concerning dependents of incompetents, was repealed by Acts 1992, ch. 794, § 50, effective January 1, 1993. For new law concerning guardianship and conservatorship, see chs. 1-3 of this title.

Chapter 5
Uniform Veterans' Guardianship Law

34-5-101. Short title.

This chapter shall be known and may be cited as the “Uniform Veterans' Guardianship Law.”

Acts 1943, ch. 90, § 20; C. Supp. 1950, § 8558.1; T.C.A. (orig. ed.), § 34-901.

Cross-References. Veterans' Guardianship Act unaffected by Uniform Fiduciaries Act, § 35-2-106.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, §§ 7, 10.

NOTES TO DECISIONS

1. Notice.

Probate court did not abuse its discretion by modifying co-conservators' respective duties and responsibilities without first conducting a formal evidentiary hearing because the wife, co-conservator, had notice of the bank's attempts to modify the duties and responsibilities of the co-conservators so that it would be assigned exclusive control over the federal litigation and that she appeared at a hearing on the matter. AmSouth Bank v. Cunningham, 253 S.W.3d 636, 2006 Tenn. App. LEXIS 144 (Tenn. Ct. App. Feb. 27, 2006).

Collateral References.

Constitutionality, construction, and effect of the Uniform Veterans' Guardianship Act. 173 A.L.R. 1061.

Validity, construction, and application of Uniform Veterans' Guardianship Act. 113 A.L.R.5th 283.

34-5-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

“Administrator” means the administrator of veterans affairs of the United States, or the administrator's successor;
“Benefits” means all moneys paid or payable by the United States through the veterans administration;
“Estate” means income on hand and assets acquired partially or wholly with “income”;
“Guardian” means any fiduciary for the person or estate of a ward;
“Income” means moneys received from the veterans administration and revenue or profit from any property wholly or partially acquired with those moneys;
“Person” means an individual, a partnership, a corporation or an association;
“Veterans administration” means the veterans administration, its predecessors or successors; and
“Ward” means a beneficiary of the veterans administration.

Acts 1943, ch. 90, § 1; C. Supp. 1950, § 8558.2 (Williams, § 8541); T.C.A. (orig. ed.), § 34-902.

34-5-103. Administrator as party in interest.

The administrator shall be a party in interest in any proceeding for the appointment or removal of a guardian or for the removal of the disability of minority or mental incapacity of a ward, and in any suit or other proceeding affecting in any manner the administration by the guardian of the estate of any present or former ward whose estate included assets derived in whole or in part from benefits heretofore or hereafter paid by the veterans administration. Not less than fifteen (15) days prior to a hearing in such a matter, notice in writing of the time and place of the hearing shall be given by mail, unless waived in writing, to the office of the veterans administration having jurisdiction over the area in which the suit or proceeding is pending.

Acts 1943, ch. 90, § 2; C. Supp. 1950, § 8558.3 (Williams, § 8541.1); T.C.A. (orig. ed.), § 34-903.

34-5-104. Appointment of guardian when necessary prior to payment of benefits.

Whenever, pursuant to any law of the United States or regulation of the veterans administration, it is necessary, prior to payment of benefits, that a guardian be appointed, the appointment may be made in the manner provided in §§ 34-5-106 — 34-5-110.

Acts 1943, ch. 90, § 3; C. Supp. 1950, § 8558.4 (Williams, § 8542); T.C.A. (orig. ed.), § 34-904.

34-5-105. Limitation on number of wards.

No person, other than a bank or trust company, shall be guardian of more than twelve (12) wards at one time, unless all wards are members of one family.
Upon presentation of a petition by an attorney of the department of veterans services or other interested person, alleging that a guardian is acting in a fiduciary capacity for more than twelve (12) wards as provided in subsection (a) and requesting the guardian's discharge for that reason, the court, upon proof substantiating the petition, shall require a final accounting forthwith from the guardian and shall discharge the guardian from guardianships in excess of twelve (12), after first having appointed a successor.

Acts 1943, ch. 90, § 4; C. Supp. 1950, § 8558.5 (Williams, § 8543); T.C.A. (orig. ed.), § 34-905; Acts 1990, ch. 623, § 1; 2015, ch. 24, § 7.

Amendments. The 2015 amendment substituted “department of veterans services” for “department of veterans' affairs” in (b).

Effective Dates. Acts 2015, ch. 24, § 9. July 1, 2015.

34-5-106. Petition for appointment of guardian.

A petition for the appointment of a guardian may be filed by any relative or friend of the ward or by any person who is authorized by law to file such a petition. If there is no person so authorized or if the person so authorized refuses or fails to file a petition within thirty (30) days after mailing of notice by the veterans administration to the last known address of the person, if any, indicating the necessity for the appointment, a petition for appointment may be filed by any resident of this state.
The petition for appointment shall set forth the name, age and place of residence of the ward, the name and place of residence of the nearest relative, if known, and the fact that the ward is entitled to receive benefits payable by or through the veterans administration, and shall set forth the amount of moneys then due and the amount of probable future payments.
The petition shall also set forth the name and address of the person or institution, if any, having actual custody of the ward and the name, age, relationship, if any, occupation and address of the proposed guardian and, if the nominee is a natural person, the number of wards for whom the nominee is presently acting as guardian. Notwithstanding any law as to priority of persons entitled to appointment, or the nomination in the petition, the court may appoint some other individual or a bank or trust company as guardian, if the court determines it is for the best interest of the ward.
In the case of a mentally incompetent ward, the petition shall show that the ward has been rated incompetent by the veterans administration on examination in accordance with the laws and regulations governing the veterans administration.

Acts 1943, ch. 90, § 5; C. Supp. 1950, § 8558.6 (Williams, § 8544); T.C.A. (orig. ed.), § 34-906.

34-5-107. Evidence of necessity for guardian of minor.

Where a petition is filed for the appointment of a guardian for a minor, a certificate of the administrator or the administrator's authorized representative, setting forth the age of the minor as shown by the records of the veterans administration and the fact that the appointment of a guardian is a condition precedent to the payment of any moneys due the minor by the veterans administration, shall be prima facie evidence of the necessity for the appointment.

Acts 1943, ch. 90, § 6; C. Supp. 1950, § 8558.7 (Williams, § 8545); T.C.A. (orig. ed.), § 34-907.

34-5-108. Evidence of necessity for guardian for incompetent.

Where a petition is filed for the appointment of a guardian for a mentally incompetent ward, a certificate of the administrator, or the administrator's duly authorized representative, that the person has been rated incompetent by the veterans administration on examination in accordance with the laws and regulations governing the veterans administration and that the appointment of a guardian is a condition precedent to the payment of any moneys due the ward by the veterans administration, shall be prima facie evidence of the necessity for the appointment.

Acts 1943, ch. 90, § 7; C. Supp. 1950, § 8558.8 (Williams, § 8546); T.C.A. (orig. ed.), § 34-908.

34-5-109. Notice of petition for appointment.

Upon the filing of a petition for the appointment of a guardian under this chapter, notice shall be given to the ward and to other persons, in the manner provided by the general law of this state, and also to the veterans administration as provided by this chapter.

Acts 1943, ch. 90, § 8; C. Supp. 1950, § 8558.9 (Williams, § 8547); T.C.A. (orig. ed.), § 34-909.

34-5-110. Bond of guardian.

Upon the appointment of a guardian, the guardian shall execute and file a bond to be approved by the court in an amount not less than the estimated value of the personal estate and anticipated income of the ward during the ensuing year. The bond shall be in the form and be conditioned as required of guardians appointed under the general guardianship laws of this state. The court may from time to time require the guardian to file an additional bond.
Where a bond is tendered by a guardian with personal sureties, there shall be at least two (2) such sureties and they shall file with the court a certificate under oath which shall describe the property owned, both real and personal, and shall state that each is worth the sum named in the bond as the penalty thereof over and above all debts and liabilities and the aggregate of other bonds on which the guardian is principal or surety and exclusive of property exempt from execution. The court may require additional security or may require a corporate surety bond, the premium thereon to be paid from the ward's estate.

Acts 1943, ch. 90, § 9; C. Supp. 1950, § 8558.10 (Williams, § 8548); T.C.A. (orig. ed.), § 34-910.

Cross-References. Guardian's bond, § 34-1-105.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 10.

34-5-111. Accounts — Certificate of examination of securities or investments — Copies sent to veterans administration office — Notice of hearing — Property derived from other sources.

Every guardian who has received or shall receive on account of a ward any moneys or other thing of value from the veterans administration shall file with the court annually, on the anniversary date of the appointment, in addition to such other accounts as may be required by the court, a full, true and accurate account under oath of all moneys or other things of value so received by that guardian, all earnings, interest or profits derived from and all property acquired with those moneys or other things of value and of all disbursements from them, and showing the balance of those moneys or other things of value in that guardian's hands at the date of the account and how invested.
The guardian, at the time of filing any account, shall exhibit all securities or investments held by the guardian to an officer of the bank or other depository in which the securities or investments are held for safekeeping or to an authorized representative of the corporation that is surety on the guardian's bond, or to the judge or clerk of a court of record in this state, or, upon request of the guardian or other interested party, to any other reputable person designated by the court, who shall certify in writing that that person has examined the securities or investments and identified them with those described in the account, and shall note any omissions or discrepancies. If the depository is the guardian, the certifying officer shall not be the officer verifying the account. The guardian may exhibit the securities or investments to the judge of the court, who shall endorse on the account and copy of the account a certificate that the securities or investments shown in the account as held by the guardian were each in fact exhibited to the judge and that those exhibited to the judge were the same as those shown in the account, and noting any omission or discrepancy. With respect to funds for which the guardian is accountable, deposited in any bank, federal savings bank or credit union, a guardian's account to the court for those funds may be made in accordance with § 34-1-111(c)(1)(B).
At the time of filing in the court any account, a certified copy of the account and a signed duplicate of each certificate filed with the court shall be sent by the guardian to the office of the veterans administration having jurisdiction over the area in which the court is located. A signed duplicate or a certified copy of any petition, motion or other pleading, pertaining to an account, or to any matter other than an account, and filed in the guardianship proceedings, or in any proceeding for the purpose of removing the disability of minority or mental incapacity, shall be furnished by the person filing the same to the proper office of the veterans administration. Unless a hearing is waived in writing by the attorney of the veterans administration, and by all other persons, if any, entitled to notice, the court shall fix a time and place for the hearing on the account, petition, motion or other pleading not less than fifteen (15) days nor more than thirty (30) days from the date the account, petition, motion or other pleading is filed, unless a different available date is stipulated in writing. Unless waived in writing, written notice of the time and place of hearing shall be given the veterans administration office concerned and the guardian and any others entitled to notice not less than fifteen (15) days prior to the date fixed for the hearing. The notice may be given by mail, in which event it shall be deposited in the mails not less than fifteen (15) days prior to that date. The court, or clerk of the court, shall mail to the veterans administration office a copy of each order entered in any guardianship proceeding in which the administrator is an interested party.
If the guardian or conservator is accountable for property derived from sources other than the veterans administration, the guardian or conservator shall be accountable for such other property as is or may be required under the applicable law of this state pertaining to the property of minors or persons adjudicated incompetent who are not beneficiaries of the veterans administration, and as to that other property shall be entitled to the compensation provided by that law. The account for other property may be combined with the account filed in accordance with this section.

Acts 1943, ch. 90, § 10; C. Supp. 1950, § 8558.11 (Williams, § 8549); T.C.A. (orig. ed.), § 34-911; Acts 1998, ch. 762, § 2; 2011, ch. 47, § 25.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

34-5-112. Failure to account or furnish copies — Penalty.

If any guardian fails to file with the court any account as required by this chapter, or by an order of the court, when any account is due or within thirty (30) days after citation issues as provided by law, or fails to furnish the veterans administration a true copy of any account, petition or pleading, as required by this chapter, this failure may in the discretion of the court be grounds for the guardian's removal.

Acts 1943, ch. 90, § 11; C. Supp. 1950, § 8558.12 (Williams, § 8550); T.C.A. (orig. ed.), § 34-912.

34-5-113. Compensation of guardians.

Compensation payable to guardians shall be based upon services rendered and shall not exceed seven percent (7%) of the amount of moneys received during the period covered by the account; provided, that the court may approve compensation of not to exceed two hundred fifty dollars ($250) per year in any case in which seven percent (7%) of the income is less than that amount and does not, in the opinion of the court, adequately compensate the guardian for the services rendered during the year. In the event of extraordinary services by any guardian, the court, upon petition and hearing on the petition, may authorize reasonable additional compensation for those services. A copy of the petition and notice of hearing on the petition shall be given to the proper office of the veterans administration in the manner provided in the case of hearing on a guardian's account or other pleading. No commission or compensation shall be allowed on the moneys or other assets received from a prior guardian, nor upon the principal amount received from liquidation of loans, or from other investments.

Acts 1943, ch. 90, § 12; C. Supp. 1950, § 8558.13 (Williams, § 8551); Acts 1963, ch. 221, § 1; T.C.A. (orig. ed.), § 34-913; Acts 1987, ch. 322, § 17.

34-5-114. Investment of funds.

Every guardian shall invest the corpus of all funds of the guardian's ward, coming into the guardian's hands, only in the following types of securities in which the guardian shall have no interest, directly or indirectly:

The direct bonds and obligations of the United States, or in mutual fund shares of a registered investment company or common trust funds which are invested only in direct bonds and obligations of the United States, or obligations issued separately or collectively by or for federal land banks, federal intermediate credit banks and banks for cooperatives under the act of Congress known as the Farm Credit Act of 1971, 85 Stat. 583, 12 U.S.C § 2001 and amendments to that act, or Home Owners' Loan Corporation bonds, guaranteed in principal and interest by the United States government, procuring them always at the best possible salable or market price obtainable in the interest of the ward; bonds and/or debentures issued by any Federal Home Loan Bank organized under the Federal Home Loan Bank Act of the United States;
The bonds of the state of Tennessee, procuring the bonds always at the best possible salable or market price obtainable in the interest of the ward;
The bonds of any county in this state having a population of fifteen thousand (15,000) by the last federal census next preceding the date of the investment, that has not defaulted within twenty (20) years preceding the investment for more than thirty (30) days in the payment of any part either of principal or interest of any bond, note or other evidence of indebtedness, procuring the bonds always at the best possible salable or market price obtainable in the interest of the ward; provided, that before investment is made in the county bonds as authorized in this subdivision (3), there has been filed with the clerk of the court having jurisdiction of the guardianship a certificate by the chief financing officer, or treasurer of the county, certifying to the prerequisites as provided in this subdivision (3) regarding population and status of the bonds;
The bonds or notes of any city or town in this state that has a population as shown by the last federal census next preceding the investment of not less than forty-five thousand (45,000) and has not defaulted within twenty (20) years preceding the investment for more than thirty (30) days in the payment of any part either of principal or interest of any bond, note or other evidence of indebtedness, procuring the bonds or notes always at the best possible salable or market price obtainable in the interest of the ward; provided, that before investment is made in city bonds as authorized in this subdivision (4), there has been filed with the clerk of the court having jurisdiction of the guardianship a certificate by the chief financing officer or treasurer of the city certifying to the prerequisites as provided in this subdivision (4) regarding population and status of the bonds;
First mortgage or trust deed on real estate situated in the county of the guardianship, the amount lent not to exceed one half (½) of the actual cash value of the real estate mortgaged; provided, that the real estate has been appraised and reported as to its cash market value by three (3) disinterested persons appointed for that purpose by the chancery or probate court of the county in which the land lies, upon application to the court to that end, and approved by the court;
Certificates of deposit, time deposits, savings deposits, and any other accounts, issued and accepted by any state or national bank that has insured its accounts with the federal deposit insurance corporation, up to the maximum amount insured by the federal deposit insurance corporation; and
Any type of savings account or deposits (including certificates of deposit) in an amount that is insured with an insurer approved by the commissioner of commerce and insurance.

Acts 1943, ch. 90, § 13; C. Supp. 1950, § 8558.14 (Williams, § 8552); modified; Acts 1969, ch. 23, § 1; 1969, ch. 150, § 1; 1976, ch. 585, § 1; 1978, ch. 708, § 6.02; T.C.A. (orig. ed.), § 34-914; Acts 1987, ch. 322, § 18; 2014, ch. 829, § 3.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see volume 13 and its supplement.

34-5-115. Time allowed to make investment.

Pending time the investments are being made by the guardian, the guardian shall not be chargeable with interest; provided, that the guardian shall not be allowed more than four (4) months in which to make the investment. If the guardian does not make specified investments in or on the securities named in § 34-5-114, the guardian shall be charged with the rate of interest, not exceeding six percent (6%) as the court in which the guardianship is pending may determine to be the fair value of the use of money at that time.

Acts 1943, ch. 90, § 14; C. Supp. 1950, § 8558.15 Williams (§ 8552.1); T.C.A. (orig. ed.), § 34-915.

34-5-116. Maintenance and support.

A guardian shall not apply any portion of the income or the estate for the support or maintenance of any person other than the ward, the spouse and the minor children of the ward, except upon petition to and prior order of the court after a hearing. A signed duplicate or certified copy of the petition shall be furnished the proper office of the veterans administration and notice of hearing on the petition shall be given the office as provided in the case of hearing on a guardian's account or other pleading.

Acts 1943, ch. 90, § 15; C. Supp. 1950, § 8558.16 (Williams, § 8553); T.C.A. (orig. ed.), § 34-916.

34-5-117. Copies of public records to be furnished.

When a copy of any public record is required by the veterans administration to be used in determining the eligibility of any person to participate in benefits made available by the veterans administration, the official custodian of that public record shall, without charge, provide the applicant for those benefits, or any person acting on the applicant's behalf, or the authorized representative of the veterans administration with a certified copy of the record.

Acts 1943, ch. 90, § 16; C. Supp. 1950, § 8558.17 (Williams, § 8554); T.C.A. (orig. ed.), § 34-917.

34-5-118. Commitment to veterans administration or other federal agency.

Whenever, in any proceeding under the laws of this state for the commitment of a person alleged to be incompetent or otherwise in need of placement in a hospital or other institution for proper care, it is determined, after the adjudication of the status of that person as may be required by law, that commitment to a hospital for mental illness or other institution is necessary for care or treatment, and it appears that the person is eligible for care or treatment by the veterans administration or other agency of the United States government, the court, upon receipt of a certificate from the veterans administration or other agency showing that facilities are available and that the person is eligible for care or treatment in those facilities, may commit the person to the veterans administration or other agency. The person whose commitment is sought shall be personally served with notice of the pending commitment proceeding in the manner as provided by the law of this state, and nothing in this chapter shall affect the person's right to appear and be heard in the proceedings. Upon commitment, the person, when admitted to any facility operated by an agency within or without this state, shall be subject to the rules and regulations of the veterans administration or other agency. The chief officer of any facility of the veterans administration or institution operated by any other agency of the United States to which the person is so committed shall, with respect to the person, be vested with the same powers as superintendents of state hospitals for mental illness within this state with respect to retention of custody, transfer, or discharge. Jurisdiction is retained in the committing or other appropriate court of this state at any time to inquire into the mental condition of the person so committed, and to determine the necessity for continuance of commitment, and all commitments pursuant to this chapter are so conditioned.
The judgment or order of commitment by a court of competent jurisdiction of another state or of the District of Columbia, committing a person to the veterans administration, or other agency of the United States government for care or treatment, shall have the same force and effect as to the committed person while in this state as in the jurisdiction in which is situated the court entering the judgment or making the order; and the court of the committing state, or of the District of Columbia, shall be deemed to have retained jurisdiction of the person so committed for the purpose of inquiring into the mental condition of that person, and of determining the necessity for continuance of restraint, as is provided in subsection (a) with respect to persons committed by the courts of this state. Consent is given to the application of the law of the committing state or district in respect to the authority of the chief officer of any facility of the veterans administration, or of any institution operated in this state by any other agency of the United States to retain custody, or to transfer, parole or discharge the committed person.
Upon receipt of a certificate of the veterans administration or another agency of the United States that facilities are available for the care or treatment of any person previously committed to any hospital for the insane, or other institution for the care or treatment of persons similarly afflicted and that the person is eligible for care or treatment, the superintendent of the institution may cause the transfer of the person to the veterans administration or other agency of the United States for care or treatment. Upon effecting any such transfer, the committing court or proper officer of the court shall be notified of the transfer by the transferring agency. No person who is confined pursuant to conviction of any felony or misdemeanor or who has been acquitted of the charge solely on the ground of insanity shall be transferred to the veterans administration or other agency of the United States, unless prior to transfer the court or other authority originally committing the person shall enter an order for the transfer after appropriate motion and hearing.
Any person transferred as provided in this section shall be deemed to be committed to the veterans administration or other agency of the United States pursuant to the original commitment.

Acts 1943, ch. 90, § 18; C. Supp. 1950, § 8558.18 (Williams, § 8556.1); T.C.A. (orig. ed.), § 34-918; Acts 2011, ch. 47, § 26.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Cross-References. Transfers from state hospital to veteran's hospital, § 33-3-302.

34-5-119. Discharge of guardian and release of sureties.

In addition to any other provisions of law relating to judicial restoration and discharge of guardian, a certificate by the veterans administration showing that a minor ward has attained majority, or that an incompetent ward has been rated competent by the veterans administration upon examination in accordance with law, shall be prima facie evidence that the ward has attained majority, or has recovered competency. Upon hearing after notice as provided by this chapter and the determination by the court that the ward has attained majority or has recovered competency, an order shall be entered to that effect, and the guardian shall file a final account. Upon hearing after notice to the former ward and to the veterans administration as in case of other accounts, upon approval of the final account, and upon delivery to the ward of the assets due the ward from the guardian, the guardian shall be discharged and the guardian's sureties released.

Acts 1943, ch. 90, § 17; C. Supp. 1950, § 8558.19 (Williams, § 8556); T.C.A. (orig. ed.), § 34-919.

34-5-120. Uniform construction.

This chapter shall be so construed as to make uniform the laws of those states that enact it.

Acts 1943, ch. 90, § 19; C. Supp. 1950, § 8558.20 (Williams, § 8558); T.C.A. (orig. ed.), § 34-920.

34-5-121. Application of other laws.

Except where inconsistent with this chapter, the laws of this state relating to guardian and ward and the judicial practice relating to those laws, including the right to trial by jury and the right of appeal, shall be applicable to beneficiaries and their estate.

Acts 1943, ch. 90, § 22; mod. C. Supp. 1950, § 8558.21 (Williams, § 8558.3); T.C.A. (orig. ed.), § 34-921.

34-5-122. Application of chapter.

The provisions of this chapter relating to surety bonds and the administration of estates of wards shall apply to all “income” and “estate,” as defined in this chapter, whether the guardian has been appointed under this chapter or under any other law of this state, special or general, prior or subsequent to the enactment of this chapter.

Acts 1943, ch. 90, § 23; C. Supp. 1950, § 8558.22 (Williams, § 8558.4); T.C.A. (orig. ed.), § 34-922.

NOTES TO DECISIONS

1. Conveyance of Real Estate.

Court order adjudicating veteran incompetent and appointing guardian under this chapter is legal constructive notice to the world that inquiry as to actual insanity should be made and of resulting restriction to guardian to deed or mortgage incompetent's property. Rymer v. Smith, 38 Tenn. App. 414, 274 S.W.2d 643, 1954 Tenn. App. LEXIS 130 (Tenn. Ct. App. 1954).

Chapter 6
Power of Attorney

Part 1
Uniform Durable Power of Attorney Act

34-6-101. Short title — Construction of part.

This part shall be known and may be cited as the “Uniform Durable Power of Attorney Act.”
This part shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this part among states enacting it. Nothing in this part shall be construed as abolishing or otherwise adversely affecting the conservatorship law or limited guardianship.

Acts 1983, ch. 299, §§ 1, 8; T.C.A., §§ 34-13-101, 34-6-107.

Cross-References. Conservatorship, title 34, ch. 3.

Presumption as to deeds by attorneys after twenty years' registration, § 66-26-108.

Presumption as to powers of attorney after twenty years, § 66-26-109.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 4-102, 4-103.

Law Reviews.

Attorney v. Client — Privity, Malpractice, and the Lack of Respect for the Primacy of the Attorney-Client Relationship in Estate Planning, 68 Tenn. L. Rev. 261 (2001).

Helping Your Clients with End-of-Life Directives: Who Will Decide? (Charles M. Key), 42 Tenn B.J. 13 (2006).

Living Wills, Organ Donation, and Durable Powers of Attorney (John K. Fockler), 23 No. 1 Tenn. B.J. 23 (1987).

Attorney General Opinions. Effect of appointment as conservator upon power of attorney to sell land, OAG 97-156, 1997 Tenn. AG LEXIS 180 (11/14/97).

Ability of a person possessing limited communication skills to execute a power of attorney. OAG 10-89, 2010 Tenn. AG LEXIS 95 (7/29/10).

Duties and liabilities of district public guardian. OAG 13-36, 2013 Tenn. AG LEXIS 37 (5/2/13).

34-6-102. “Durable power of attorney” defined.

A durable power of attorney is a power of attorney by which a principal designates another as the principal's attorney in fact in writing and the writing contains the words “This power of attorney shall not be affected by subsequent disability or incapacity of the principal,” or “This power of attorney shall become effective upon the disability or incapacity of the principal,” or similar words showing the intent of the principal that the authority conferred shall be exercisable, notwithstanding the principal's subsequent disability or incapacity.

Acts 1983, ch. 299, § 2; T.C.A., § 34-13-102.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-102.

Law Reviews.

The Shifting Focus of Estate Planning from Death to Disability (Ronald Lee Gilman), 25 No. 3 Tenn. B.J. 12 (1989).

Attorney General Opinions. Ability of a person possessing limited communication skills to execute a power of attorney. OAG 10-89, 2010 Tenn. AG LEXIS 95 (7/29/10).

NOTES TO DECISIONS

1. Powers and Duties.

By authorizing her attorney-in-fact to transact all insurance business and to take any other action in this regard, the decedent's power of attorney authorized the attorney-in-fact to change the beneficiary of a life insurance policy; the power of attorney did not incorporate by reference the powers listed in T.C.A. § 34-6-109, and therefore without the limitation of T.C.A. § 34-6-108(c)(5), the words of the power of attorney sufficiently authorized the change to the decedent's beneficiary designation. Tenn. Farmers Life Reassurance Co. v. Rose, 239 S.W.3d 743, 2007 Tenn. LEXIS 1075 (Tenn. Oct. 2, 2007).

34-6-103. Effect of acts done by attorney.

All acts done by an attorney in fact pursuant to a durable power of attorney during any period of disability or incapacity of the principal have the same effect and inure to the benefit of and bind the principal and the principal's successor in interest as if the principal were competent and not disabled.

Acts 1983, ch. 299, § 3; T.C.A., § 34-13-103.

NOTES TO DECISIONS

1. Tolling during disability.

Meaning of T.C.A. § 34-6-103 becomes clearer when the history of the Uniform Durable Power of Attorney Act is considered; prior to 1983, an individual could authorize another to act on his behalf by granting a power of attorney, but that authority terminated if the grantor became incapacitated. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

Neither the Uniform Durable Power of Attorney Act nor the tolling statute, T.C.A. § 28-1-106, contains any language which would lead the supreme court of Tennessee to conclude that the legislature intended to remove the disability of unsound mind upon the granting of a power of attorney. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

Tolling statute, T.C.A. § 28-1-106, is the more specific statute, and it controls over the more general provision of the Uniform Durable Power of Attorney Act. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

T.C.A. § 34-6-103 was not intended to remove the protection afforded to persons with disabilities under T.C.A. § 28-1-106 and the supreme court of Tennessee must presume that in enacting T.C.A. § 34-6-103, of the Uniform Durable Power of Attorney Act, the legislature was aware of the tolling statute, T.C.A. § 28-1-106; yet, the legislature failed to provide that T.C.A. § 34-6-103 should remove the disability of a person under T.C.A. § 28-1-106. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

Tolling statute, T.C.A. § 28-1-106, provides specifically that when the person entitled to commence an action is of unsound mind, the statute of limitations is tolled until the disability is removed; the Uniform Durable Power of Attorney Act gives an attorney the broad power and authority to act for a person who becomes disabled or incapacitated. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

Uniform Durable Power of Attorney Act (UDPAA) gave Tennesseans the ability to grant a power of attorney that remained enforceable during any period of disability or incapacity; this explains why the UDPAA provides that “all acts done by an attorney in fact during any period of disability” shall bind the principal “as if the principal were competent and not disabled.” Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

Intent of the language that “all acts done by an attorney in fact during any period of disability” shall bind the principal “as if the principal were competent and not disabled,” was to give the citizens of Tennessee the statutory authority to create a durable power of attorney; the statute does not refer to and was not intended to override the protections afforded to persons with disabilities under the tolling statute, T.C.A. § 28-1-106. Sullivan v. Chattanooga Med. Investors, 221 S.W.3d 506, 2007 Tenn. LEXIS 361 (Tenn. Apr. 24, 2007).

34-6-104. Effect of appointment of conservator, guardian or other fiduciary — Nomination by principal.

If, following execution of a durable power of attorney, a court of the principal's domicile appoints a conservator, guardian of the estate or other fiduciary charged with the management of all of the principal's property or all of the principal’s property except specified exclusions, the attorney in fact is accountable to the fiduciary as well as to the principal. The fiduciary has the same power to revoke or amend the power of attorney that the principal would have had if the principal were not disabled or incapacitated.
A principal may nominate, by a durable power of attorney, the conservator, guardian of the estate or guardian of the principal's person for consideration by the court if protective proceedings for the principal's person or estate are thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in a durable power of attorney except for good cause or disqualification.

Acts 1983, ch. 299, § 4; T.C.A., § 34-13-104.

34-6-105. Effect of death, disability or incapacity of principal.

The death of a principal who has executed a written power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds successors in interest of the principal.
The disability or incapacity of a principal who has previously executed a written power of attorney that is not a durable power does not revoke or terminate the agency as to the attorney in fact or other person, who without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power. Any action so taken, unless otherwise invalid or unenforceable, binds the principal and the principal's successors in interest.
As to acts undertaken in good faith reliance thereon, an affidavit executed by the attorney in fact under either a durable power of attorney, stating that the attorney in fact does not have actual knowledge of the termination of the durable power of attorney by revocation or death of the principal at the time of the exercise of the power, or a power of attorney that is not durable, stating that the attorney in fact does not have actual knowledge of the termination of the power of attorney by revocation or disability, incapacity or death of the principal at the time of the exercise of the power, is conclusive proof of the nonrevocation or nontermination of the power at that time. If the exercise of the power of attorney requires execution and delivery of any instrument that is recordable, the affidavit when authenticated for record is likewise recordable. This subsection (c) does not affect any provision in a power of attorney for its termination by expiration of time or occurrence of an event other than express revocation in the principal's capacity.

Acts 1983, ch. 299, §§ 5, 6; T.C.A., §§ 34-13-105, 34-13-106; Acts 2007, ch. 8, § 8.

Cross-References. Power of attorney for health care, right to die naturally, title 34, ch. 6, part 2.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-102.

Law Reviews.

The Shifting Focus of Estate Planning from Death to Disability (Ronald Lee Gilman), 25 No. 3 Tenn. B.J. 12 (1989).

34-6-106. Bond.

The next of kin of any principal who has executed a durable power of attorney under this part may, upon the disability or incapacity of the principal, petition a court of competent jurisdiction to require a bond of the attorney in fact.
If, after consideration of the interests of all parties involved, the court deems a bond necessary, it shall have the authority to order the attorney in fact to execute a bond in an amount deemed appropriate by the court.

Acts 1983, ch. 299, § 7; T.C.A., § 34-13-107.

34-6-107. Fiduciary relationship of attorney in fact with the principal.

An attorney in fact is in a fiduciary relationship with the principal, but only to the extent that the attorney in fact undertakes to act under the power of attorney. Among the fiduciary duties required by law, an attorney in fact has a duty to adequately account to the principal, or to any legal representative of the principal appointed by the principal or by a court, for actions taken by the attorney in fact in the exercise of the power of attorney. It is the intent of the general assembly that this section have retroactive application.

Acts 2007, ch. 8, § 9.

Compiler's Notes. Former § 34-6-107, concerning the construction of this part, was transferred to § 34-6-101 in 1991.

34-6-108. Incorporation of statutory attorney in fact — Powers by reference.

Upon the principal clearly expressing an intention to do so within the instrument creating a power of attorney, the language contained in § 34-6-109 may be incorporated into the power of attorney by appropriate reference. The provisions so incorporated shall apply to the attorney in fact with the same effect and subject to the same judicial interpretation and control in appropriate cases, as though the language were set forth verbatim in such instrument.
Nothing contained in this section and § 34-6-109 shall be construed to limit the power of the principal either to:
1. Grant any additional powers to the attorney in fact, including any powers otherwise excluded under subsection (c); or
2. Delete any of the powers otherwise granted in § 34-6-109.
Nothing contained in this section and § 34-6-109 shall be construed to vest an attorney in fact with, or authorize an attorney in fact to exercise, any of the following powers:
1. Make gifts, grants, or other transfers without consideration, except in fulfillment of charitable pledges made by the principal while competent;
2. Exercise any powers of revocation, amendment, or appointment that the principal may have over the income or principal of any trust;
3. Act on behalf of the principal in connection with any fiduciary position held by the principal, except to renounce or resign the position;
4. Exercise any incidents of ownership on any life insurance policies owned by the principal on the life of the attorney in fact;
5. Change beneficiary designations on any death benefits payable on account of the death of the principal from any life insurance policy, employee benefit plan, or individual retirement account;
6. Change, add or delete any right of survivorship designation on any property, real or personal, to which the principal holds title, alone or with others;
7. Renounce or disclaim any property or interest in property or powers to which the principal may become entitled, whether by gift or testate or intestate succession;
8. Exercise any right, or refuse, release or abandon any right, to claim an elective share in any estate or under any will; or
9. Make any decisions regarding medical treatments or health care, except as incidental to decisions regarding property and finances.
Nothing contained in this section and § 34-6-109 shall be construed to limit the power of a court of competent jurisdiction to prohibit an attorney in fact from taking any action, or to restrain an attorney in fact in the taking of any action, notwithstanding the authorizations or powers vested in the attorney in fact by any written instrument into which all or any part of § 34-6-109 is incorporated by reference.

Acts 1991, ch. 197, § 2.

Law Reviews.

Planning for Incompetency Made Difficult: Legislation Provides Traps for the Unwary (David E. Fowler), 28 Tenn. B.J. 18 (1992).

NOTES TO DECISIONS

1. Application.

In a will contest, a court erred by providing the jury with a checklist of powers needed to create an “unrestricted” power of attorney and a confidential relationship because the jury was misled as to how a confidential relationship could be created by a power of attorney. Therefore, the presumption of undue influence could not have been raised, causing the burden to shift to defendants to prove the fairness of the transactions by clear and convincing evidence. Parish v. Kemp, 179 S.W.3d 524, 2005 Tenn. App. LEXIS 133 (Tenn. Ct. App. 2005), appeal denied, — S.W.3d —, 2005 Tenn. LEXIS 928 (Tenn. Oct. 24, 2005).

2. Change of Beneficiary.

34-6-109. Attorney in fact — Powers.

Without diminution or restriction of the powers vested in the attorney in fact, by law or elsewhere in the instrument, and subject to all other provisions of the instrument, the attorney in fact, without the necessity of procuring any judicial authorization, or approval, shall be vested with and in the application of the attorney in fact's best judgment and discretion on behalf of the principal shall be authorized to exercise the powers specifically enumerated in this section:

Generally do, sign or perform in the principal's name, place and stead any act, deed, matter or thing whatsoever, that ought to be done, signed or performed, or that, in the opinion of the attorney in fact, ought to be done, signed or performed in and about the premises, of every nature and kind whatsoever, to all intents and purposes whatsoever, as fully and effectually as the principal could do if personally present and acting. The enumeration of specific powers hereunder shall not in any way limit the general powers conferred here;
Receive from or disburse to any source whatever moneys through checking or savings or other accounts or otherwise, endorse, sign and issue checks, withdrawal receipts or any other instrument, and open or close any accounts in the principal's name alone or jointly with any other person;
Buy, sell, lease, alter, maintain, pledge or in any way deal with real and personal property and sign each instrument necessary or advisable to complete any real or personal property transaction, including, but not limited to, deeds, deeds of trust, closing statements, options, notes and bills of sale;
Make, sign and file each income, gift, property or any other tax return or declaration required by the United States or any state, county, municipality or other legally constituted authority;
Acquire, maintain, cancel or in any manner deal with any policy of life, accident, disability, hospitalization, medical or casualty insurance, and prosecute each claim for benefits due under any policy;
Provide for the support and protection of the principal, or of the principal's spouse, or of any minor child of the principal or of the principal's spouse dependent upon the principal, including, without limitation, provision for food, lodging, housing, medical services, recreation and travel;
Have free and private access to any safe deposit box in the principal's individual name, alone or with others, in any bank, including authority to have it drilled, with full right to deposit and withdraw from the safe deposit box or to give full discharge for the safe deposit box;
Receive and give receipt for any money or other obligation due or to become due to the principal from the United States, or any agency or subdivision of the United States, and to act as representative payee for any payment to which the principal may be entitled, and effect redemption of any bond or other security in which the United States, or any agency or subdivision of the United States, is the obligor or payor, and give full discharge therefor;
Contract for or employ agents, accountants, advisors, attorneys and others for services in connection with the performance by the principal's attorney in fact of any powers in this section;
Buy United States government bonds redeemable at par in payment of any United States estate taxes imposed at principal's death;
Borrow money for any of the purposes described in this section, and secure the borrowings in the manner the principal's attorney in fact deems appropriate, and use any credit card held in the principal's name for any of the purposes described in this section;
Establish, utilize, and terminate checking and savings accounts, money market accounts and agency accounts with financial institutions of all kinds, including securities brokers and corporate fiduciaries;
Invest or reinvest each item of money or other property and lend money or property upon the terms and conditions and with the security the principal's attorney in fact may deem appropriate, or renew, extend, or modify loans, all in accordance with the fiduciary standards of § 35-3-117;
Engage in and transact any and all lawful business of whatever nature or kind for the principal and in the principal's name, whether as partner, joint adventurer, stockholder, or in any other manner or form, and vote any stock or enter voting trusts;
Pay dues to any club or organization to which the principal belongs, and make charitable contributions in fulfillment of any charitable pledge made by the principal;
Transfer any property owned by the principal to any revocable trust created by the principal with provisions for the principal's care and support;
Sue, defend or compromise suits and legal actions, and employ counsel in connection with the suits and legal actions, including the power to seek a declaratory judgment interpreting this power of attorney, or a mandatory injunction requiring compliance with the instructions of the principal's attorney in fact, or actual and punitive damages against any person failing or refusing to follow the instructions of the principal's attorney in fact;
Reimburse the attorney in fact or others for all reasonable costs and expenses actually incurred and paid by that person on behalf of the principal;
Create, contribute to, borrow from and otherwise deal with an employee benefit plan or individual retirement account for the principal's benefit, select any payment option under any employee benefit plan or individual retirement account in which the principal is a participant or change options the principal has selected, make “roll-overs” of plan benefits into other retirement plans, and apply for and receive payments and benefits;
Execute other power of attorney forms on behalf of the principal that may be required by the internal revenue service, financial or brokerage institutions, or others, naming the attorney in fact under this section as attorney in fact for the principal on such additional forms;
Request, receive and review any information, verbal or written, regarding the principal's personal affairs or the principal's physical or mental health, including legal, medical and hospital records, execute any releases or other documents that may be required in order to obtain that information, and disclose that information to persons, organizations, firms or corporations the principal's attorney in fact deems appropriate;
Make advance arrangements for the principal's funeral and burial, including the purchase of a burial plot and marker, if the principal has not already done so; and
Access any catalogue of electronic communications sent or received by the principal, and any other digital asset in which the principal has a right or interest, pursuant to the Revised Uniform Fiduciary Access to Digital Assets Act, compiled in title 35, chapter 8. For purposes of this subdivision (23), “catalogue of electronic communications” and “digital asset” have the same meaning as defined in the Revised Uniform Fiduciary Access to Digital Assets Act.

Acts 1991, ch. 197, § 3; 2014, ch. 829, § 4; 2016, ch. 570, § 21.

Amendments. The 2016 amendment added (23).

Effective Dates. Acts 2016, ch. 570, § 24. July 1, 2016.

Law Reviews.

Planning for Incompetency Made Difficult: Legislation Provides Traps for the Unwary (David E. Fowler), 28 Tenn. B.J. 18 (1992).

Tennessee's Creative Solution: Estate Planning After Incompetence (Dan. W. Holbrook), 35 No. 6 Tenn. B.J. 13 (1999).

NOTES TO DECISIONS

1. Change of Beneficiary.

2. Real Property.

Chancery court erred in denying an amended motion to redeem the subject property from a tax sale because the son who executed the motion was not engaged in the unauthorized practice of law inasmuch as he was authorized — as his father's attorney-in-fact by his father, the principal — under a power of attorney, to file the original motion to redeem, the form was provided by the clerk's office in a simple form that nonlawyers could easily fill out, and the power of attorney allowed the son to take legal action regarding the subject property. 2018 Tenn. App. LEXIS 255 (Tenn. Ct. App. May 11, 2018).

34-6-110. Gifts under power of attorney.

If any power of attorney or other writing:
1. Authorizes an attorney-in-fact or other agent to do, execute or perform any act that the principal might or could do; or
2. Evidences the principal's intent to give the attorney-in-fact or agent full power to handle the principal's affairs or to deal with the principal's property;
  then the attorney-in-fact or agent shall have the power and authority to make gifts, in any amount, of any of the principal's property, to any individuals, or to organizations described in §§ 170(c) and 2522(a) of the Internal Revenue Code (26 U.S.C. §§ 170 and 2522), or corresponding future provisions of the federal tax law, or both, in accordance with the principal's personal history of making or joining in the making of lifetime gifts. This section shall not in any way limit the right or power of any principal, by express words in the power of attorney or other writing, to authorize, or limit the authority of, any attorney-in-fact or other agent to make gifts of the principal's property.
If subsection (a) does not apply, an attorney-in-fact or other agent acting under a durable general power of attorney or other writing may petition a court of the principal's domicile for authority to make gifts of the principal's property to the extent not inconsistent with the express terms of the power of attorney or other writing. The court shall determine the amounts, recipients and proportions of any gifts of the principal's property after considering all relevant factors including, without limitation:
1. The value and nature of the assets of the principal's estate;
2. The principal's foreseeable obligations and maintenance needs;
3. The principal's existing estate plan; and
4. The gift and estate tax effects of the gifts.
This section is declaratory of existing law in this state; provided, that this section shall not be construed as authorizing the refund of any taxes imposed by title 67, chapter 8.

Acts 1997, ch. 407, § 8.

Law Reviews.

Tennessee's Creative Solution: Estate Planning After Incompetence (Dan. W. Holbrook), 35 No. 6 Tenn. B.J. 13 (1999).

NOTES TO DECISIONS

1. Fiduciary Duty.

There was no evidence in the record that the decedent ever made joint gifts to the decedent's wife and decedent's brother-in-law. Thus, where the wife, with power of attorney, used the decedent's separate funds entrusted to invest in an overseas chicken ranch owned by the brother-in-law, the wife breached a fiduciary duty, and was compelled to return all of the decedent's separate funds to the estate. Martin v. Moore, 109 S.W.3d 305, 2003 Tenn. App. LEXIS 47 (Tenn. Ct. App. 2003), review or rehearing denied, — S.W.3d —, 2003 Tenn. LEXIS 440 (Tenn. May 19, 2003).

2. Gift-giving Not Authorized.

Power of attorney did not authorize the daughter to make gifts on her father's behalf where, when considered in context, the broad language related only to the father's medical needs, there was no reference to T.C.A. § 34-6-110(a)(1) and no language granting the daughter the power described in that statute, and there was no evidence the father had a history of making gifts to the daughter or her husband. In re Conservatorship of Patton, — S.W.3d —, 2014 Tenn. App. LEXIS 604 (Tenn. Ct. App. Sept. 26, 2014), appeal denied, — S.W.3d —, 2015 Tenn. LEXIS 22 (Tenn. Jan. 15, 2015).

3. Conversion.

Evidence did not preponderate against the findings that defendant improperly converted his mother's funds for his own benefit and he failed to prove that the money at issue represented gifts under the power of attorney; after her stroke, the mother never returned to her home and was unable to enjoy the benefit of any of the improvements made to her property by defendant, and it stretched credibility to think that the mother intended to gift money to defendant to use in the manner in which he did when that money could have been used to provide for the mother's immediate physical care and comfort after she suffered the stroke. Conkin v. Mettetal, — S.W.3d —, 2015 Tenn. App. LEXIS 973 (Tenn. Ct. App. Dec. 17, 2015), appeal denied, — S.W.3d —, 2016 Tenn. LEXIS 464 (Tenn. June 23, 2016).

34-6-111. Access to medical information by personal representative for limited purpose of determining disability or incapacity when effective date of power of attorney deferred.

The principal of a power of attorney pursuant to this part may direct that the power of attorney is effective at the date signed or may defer the effective date to the date the principal is determined to be disabled or incapacitated. Notwithstanding any language in the document establishing the power of attorney, if the effective date is stated as deferred to the time the principal is determined to be disabled or incapacitated, for the limited purposes of authorizing the agent designated in the power of attorney to have access to the principal's medical records, physicians, other medical personnel and to discuss the principal's health situation and particularly to comply with the HIPAA rules, the power of attorney nevertheless is effective at the date of signing and the person designated the attorney in fact shall thereupon be the principal's personal representative as that term is used in the HIPAA rules with the ability to access immediately the principal's medical records, physicians, other medical personnel and to discuss the principal's health situation for the limited purpose of determining whether the principal is disabled or incapacitated to the extent that the general provisions of the power of attorney become effective.

Acts 2004, ch. 8, § 4; 2007, ch. 8, § 10.

Compiler's Notes. HIPAA, referred to in this section, is the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d et seq.

Cross-References. Release of personal health information to determine capacity, § 35-50-127.

Attorney General Opinions. Ability of a person possessing limited communication skills to execute a power of attorney. OAG 10-89, 2010 Tenn. AG LEXIS 95 (7/29/10).

34-6-112. Access to electronic communications.

Subject to the Revised Uniform Fiduciary Access to Digital Assets Act, compiled in title 35, chapter 8, if any power of attorney expressly grants an attorney-in-fact or other agent authority over the content of an electronic communication of the principal, then the attorney-in-fact or other agent shall have the power and authority to access the content of an electronic communication that the custodian is permitted to disclose under the Electronic Communications Privacy Act (18 U.S.C. § 2702(b)). For purposes of this section, “content of an electronic communication,” “custodian,” and “electronic communication” have the same meaning as defined in the Revised Uniform Fiduciary Access to Digital Assets Act.

Acts 2016, ch. 570, § 22.

Effective Dates. Acts 2016, ch. 570, § 24. July 1, 2016.

Part 2
Durable Power of Attorney for Health Care

34-6-201. Part definitions.

As used in this part, unless the context otherwise requires:

“Durable power of attorney for health care” means a durable power of attorney to the extent that it authorizes an attorney in fact to make health care decisions for the principal;
“Health care” means any care, treatment, service or procedure to maintain, diagnose or treat an individual's physical or mental condition, and includes medical care as defined in § 32-11-103;
“Health care decision” means consent, refusal of consent or withdrawal of consent to health care;
“Health care institution” means a health care institution as defined in § 68-11-1602;
“Health care provider” means a person who is licensed, certified or otherwise authorized or permitted by the laws of this state to administer health care in the ordinary course of business or practice of a profession; and
“Person” includes an individual, corporation, partnership, association, the state, a city, county, city and county, or other public entity or governmental subdivision or agency, or any other legal entity.

Acts 1990, ch. 831, § 2.

Cross-References. Assisted suicide, § 39-13-216.

Living wills, right to die naturally, title 32, ch. 11.

Textbooks. Tennessee Forms (Robinson, Ramsey and Harwell), No. 4-103.

Law Reviews.

A Time to Be Born and a Time to Die: Pregnancy and End-Of-Life Care, 50 Tenn. B.J. 28 (2014).

Constitutional Law — Cruzan v. Director, Missouri Department of Health: The Supreme Court Reposes the Right-to-Die Issue with the Individual States, 20 Mem. St. U.L. Rev. 655 (1991).

Does Your Agent Have the Power? Extending the Power of Agents to Bind Principals to Arbitration (Sandra S. Benson), 44 Tenn. B.J. 19 (2008).

Durable Power of Attorney for Health Care and Living Will (John K. Fockler), 31 No. 1 Tenn. B.J. 14 (1995).

Durable Powers of Attorney for Health Care Decisions (David E. Fowler), 27 No. 1 Tenn. B.J. 20 (1991).

Helping Your Clients with End-of-Life Directives: Who Will Decide? (Charles M. Key), 42 Tenn B.J. 13 (2006).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

NOTES TO DECISIONS

1. “Person.”

34-6-202. Applicability of part.

A durable power of attorney for health care executed after July 1, 1991, is effective to authorize the attorney in fact to make health care decisions for the principal only if the power of attorney complies with this part.
A durable power of attorney for health care executed after April 8, 1990, and before July 1, 1991, is effective to authorize the attorney in fact to make health care decisions for the principal if the power of attorney was executed in compliance with this part as in effect on that date.
A durable power of attorney executed before April 9, 1990, that specifically authorizes the attorney in fact to make decisions relating to the medical or health care of the principal is deemed to be valid under this part, notwithstanding that it fails to comply with all of the requirements of this part.
Nothing in this part affects the validity of a decision made under a durable power of attorney before April 9, 1990.
Any durable power of attorney for health care properly executed before May 5, 1995, shall be enforceable notwithstanding any failure to notarize signatures of witnesses to the instrument.

Acts 1990, ch. 831, § 3; 1991, ch. 344, § 9; 1995, ch. 177, § 15.

34-6-203. Requirements.

An attorney in fact under a durable power of attorney for health care may not make health care decisions unless all of the following requirements are satisfied:
1. The durable power of attorney for health care specifically authorizes the attorney in the fact to make health care decisions;
2. The durable power of attorney for health care contains the date of its execution; and
3. The durable power of attorney for health care must be in writing and signed by the principal. The durable power of attorney for health care is valid if the principal's signature is either attested by a notary public with no witnesses or witnessed by two (2) witnesses without attestation by a notary public. A witness is a competent adult, who is not the agent, and at least one (1) of whom is not related to the principal by blood, marriage, or adoption and would not be entitled to any portion of the estate of the principal upon the death of the principal under any will or codicil made by the principal existing at the time of execution of the durable power of attorney for health care or by operation of law then existing. The durable power of attorney for health care shall contain an attestation clause that attests to the witnesses' compliance with the requirements of this subdivision (a)(3). It is the intent of the general assembly that this subdivision (a)(3) have retroactive application.
Except as provided in subsection (d):
1. Neither the treating health care provider nor an employee of the treating health care provider, nor an operator of a treating health care institution nor an employee of an operator of a treating health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care; and
2. A health care provider or employee of a health care provider may not act as an attorney in fact to make health care decisions if the health care provider becomes the principal's treating health care provider.
A conservator may not be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care executed by a person who is a conservatee under the laws of this state where the conservatee has the power to execute legal documents, unless:
1. The power of attorney is otherwise valid;
2. The conservatee is represented by legal counsel; and
3. The attorney representing the conservatee signs a certificate stating in substance:
  I am an attorney authorized to practice law in the state where this power of attorney was executed, and the principal was my client at the time this power of attorney was executed. I have advised my client concerning my client's rights in connection with this power of attorney and the applicable law, and the consequences of signing or not signing this power of attorney, and my client, after being so advised, has executed this durable power of attorney for health care.
An employee of the treating health care provider or an employee of an operator of a treating health care institution may be designated as the attorney in fact to make health care decisions under a durable power of attorney for health care if:
1. The employee so designated is a relative of the principal by blood, marriage or adoption; and
2. The other requirements of this part are satisfied.

Acts 1990, ch. 831, § 4; 1991, ch. 344, § 10; 1995, ch. 177, § 3; 2007, ch. 8, §§ 5, 6; 2013, ch. 215, § 1.

Cross-References. Perjury, title 39, ch. 16, part 7.

34-6-204. Attorney in fact — Powers — Limitations.

1. Unless the durable power of attorney for health care provides otherwise, or unless a court with appropriate jurisdiction finds by clear and convincing evidence that the attorney in fact is acting on behalf of the principal in bad faith, the attorney in fact designated in the durable power of attorney who is known to the health care provider to be available and willing to make health care decisions has priority over any other person to act for the principal in all matters of health care decisions.
2. 1. Notwithstanding the Uniform Durable Power of Attorney Act, compiled in part 1 of this chapter, if a court appoints a conservator, guardian of the estate or other fiduciary, that fiduciary shall not have the power to revoke or amend a durable power of attorney for health care nor replace the attorney in fact designated in a power of attorney for health care.
  2. Upon application and good cause shown, when appointing a conservator, guardian of the estate or other fiduciary, a court may revoke or amend a durable power of attorney for health care or replace the attorney in fact designated in the power.
Subject to any limitations in the durable power of attorney for health care, the attorney in fact designated in the durable power of attorney may make health care decisions for the principal, before or after the death of the principal, to the same extent as the principal could make health care decisions for the principal if the principal had the capacity to do so, including:
1. Making a disposition under the Uniform Anatomical Gift Act, compiled in title 68, chapter 30;
2. Authorizing an autopsy pursuant to the Post Mortem Examination Act, compiled in title 38, chapter 7; and
3. Directing the disposition of remains pursuant to title 68, chapter 4.
Nothing in this part affects any right the person designated as attorney in fact may have, apart from the durable power of attorney for health care, to make or participate in the making of health care decisions on behalf of the principal.
Subject to any limitations in the durable power of attorney for health care, the attorney in fact designated in such durable power of attorney may make health care decisions as provided in this part for the principal who has a terminal condition as defined in § 32-11-103. The decision to withhold or withdraw health care may be made by the attorney in fact permitting the principal to die naturally with only the administration of palliative care as defined in § 32-11-103.

Acts 1990, ch. 831, § 5; 1991, ch. 344, § 11; 2004, ch. 771, § 2.

Law Reviews.

Planning for Incompetency Made Difficult: Legislation Provides Traps for the Unwary (David E. Fowler), 28 Tenn. B.J. 17 (1992).

NOTES TO DECISIONS

2. Authority.

Decision of the attorney-in-fact to direct the disposition of a father's remains was not warranted by the terms actually used in a decedent's power of attorney because the power of attorney did not contain any express authority related to the father's remains; the authority to direct the disposition of remains was expressly limited to the decedent's remains, and the power of attorney made no reference to the father's remains or to the commingling of remains in general. In re Estate of Skinner, — S.W.3d —, 2016 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 11, 2015).

Because the disposition of a father's remains by the attorney-in-fact was not properly authorized under a decedent's power of attorney, the decedent's estate was not bound by his contracts for legal services with an attorney in defense of the action the decedent's step-children broughr. In re Estate of Skinner, — S.W.3d —, 2016 Tenn. App. LEXIS 22 (Tenn. Ct. App. Jan. 11, 2015).

34-6-205. Warning Statement.

If a person other than the principal prepares a durable power of attorney for health care for the principal, the document shall contain the following warning statement. The failure to include the warning statement in the document shall not affect the validity of the document:

WARNING TO PERSON EXECUTING THIS DOCUMENT

This is an important legal document. Before executing this document you should know these important facts.

This document gives the person you designate as your agent (the attorney in fact) the power to make health care decisions for you. Your agent must act consistently with your desires as stated in this document.

Except as you otherwise specify in this document, this document gives your agent the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.

Notwithstanding this document, you have the right to make medical and other health care decisions for yourself so long as you can give informed consent with respect to the particular decision. In addition, no treatment may be given to you over your objection, and health care necessary to keep you alive may not be stopped or withheld if you object at the time.

This document gives your agent authority to consent, to refuse to consent, or to withdraw consent to any care, treatment, service, or procedure to maintain, diagnose or treat a physical or mental condition. This power is subject to any limitations that you include in this document. You may state in this document any types of treatment that you do not desire. In addition, a court can take away the power of your agent to make health care decisions for you if your agent: (1) authorizes anything that is illegal; or (2) acts contrary to your desires as stated in this document.

You have the right to revoke the authority of your agent by notifying your agent or your treating physician, hospital or other health care provider orally or in writing of the revocation.

Your agent has the right to examine your medical records and to consent to their disclosure unless you limit this right in this document.

Unless you otherwise specify in this document, this document gives your agent the power after you die to: (1) authorize an autopsy; (2) donate your body or parts thereof for transplant or therapeutic or educational or scientific purposes; and (3) direct the disposition of your remains.

If there is anything in this document that you do not understand, you should ask an attorney to explain it to you.

Acts 1990, ch. 831, § 5.

34-6-206. Access to medical records and information.

Except to the extent the right is limited by the durable power of attorney for health care, an attorney in fact designated to make health care decisions under the durable power of attorney has the same right as the principal to receive information regarding the proposed health care, to receive and review medical records, and to consent to the disclosure of medical records.

Acts 1990, ch. 831, § 6.

34-6-207. Revocation.

The principal may, after executing a durable power of attorney for health care, do any of the following:
1. Revoke the appointment of the attorney in fact under the durable power of attorney for health care by notifying the attorney in fact orally or in writing; or
2. Revoke the authority granted to the attorney in fact to make health care decisions by notifying the health care provider orally or in writing.
If the principal notifies the health care provider orally or in writing that the authority granted to the attorney in fact to make health care decisions is revoked, the health care provider shall make the notification a part of the principal's medical records and shall make a reasonable effort to notify the attorney in fact of the revocation.
It is presumed that the principal has the capacity to revoke a durable power of attorney for health care. This presumption is a presumption affecting the burden of proof.
Unless it provides otherwise, a valid durable power of attorney for health care revokes any prior durable power of attorney for health care.
Unless the durable power of attorney for health care expressly provides otherwise, if after executing a durable power of attorney for health care the principal's marriage is dissolved or annulled, the dissolution or annulment revokes any designation of the former spouse as an attorney in fact to make health care decisions for the principal.
If authority granted by a durable power of attorney for health care is revoked under this section, a person is not subject to criminal prosecution or civil liability for acting in good faith reliance upon the durable power of attorney unless the person has actual knowledge of the revocation.
The authority of an attorney in fact acting under a durable power of attorney for health care as provided in this part may be terminated or revoked only pursuant to this section and shall not be affected by the existence of a living will executed by the principal.

Acts 1990, ch. 831, § 7.

34-6-208. Liability of health care provider.

Subject to any limitations stated in the durable power of attorney for health care, and, subject to subsection (b) and §§ 34-6-210 — 34-6-212, a health care provider is not subject to criminal prosecution, civil liability or professional disciplinary action except to the same extent as would be the case if the principal, having had the capacity to give informed consent, had made the health care decision on the principal's own behalf under like circumstances, if the health care provider relies on a health care decision and both of the following requirements are satisfied:
1. The decision is made by an attorney in fact who the health care provider believes in good faith is authorized under this part to make the decision; and
2. The health care provider believes in good faith that the decision is not inconsistent with the desires of the principal as expressed in the durable power of attorney for health care or otherwise made known to the health care provider, and, if the decision is to withhold or withdraw health care necessary to keep the principal alive, the health care provider has made a good faith effort to determine the desires of the principal to the extent that the principal is able to convey those desires to the health care provider and the results of the effort are made a part of the principal's medical records.
Nothing in this part authorizes a health care provider to do anything illegal.
Notwithstanding the health care decision of the attorney in fact designated by a durable power of attorney for health care, the health care provider is not subject to criminal prosecution, civil liability, or professional disciplinary action for failing to withdraw health care necessary to keep the principal alive.

Acts 1990, ch. 831, § 8.

34-6-209. Emergency care.

This part does not affect the law governing health care treatment in an emergency.

Acts 1990, ch. 831, § 9.

34-6-210. Principal's objection to withholding or withdrawal of care.

Nothing in this part authorizes an attorney in fact to consent to the withholding or withdrawal of health care necessary to keep the principal alive, if the principal objects to the withholding or withdrawal of the health care. In that instance, that health care decision shall be governed by the law that would apply if there were no durable power of attorney for health care; however, with respect to other and subsequent health care decisions, the durable power of attorney for health care shall remain in effect unless expressly revoked as provided in § 34-6-207.

Acts 1990, ch. 831, § 10.

34-6-211. Required execution of durable power of attorney for health care prohibited.

No health care provider, medical service plan, health maintenance organization, insurer issuing disability insurance, self-insured employee welfare plan, or nonprofit hospital plan or similar insurance or medical plan may condition admission to a health care institution, or the providing of treatment, or insurance, on the requirement that a patient execute a durable power of attorney for health care.

Acts 1990, ch. 831, § 11.

34-6-212. Applicability of § 32-11-110(a).

Section 32-11-110(a) shall apply to this part.

Acts 1990, ch. 831, § 12.

Compiler's Notes. Subsection (a) of T.C.A. § 32-11-110 provides that withholding or withdrawal of medical care from a declarant in accordance with a living will shall not constitute suicide, euthanasia or homicide.

34-6-213. Life insurance unaffected.

The execution of a durable power of attorney for health care as provided in this part shall not affect in any manner the sale, procurement or issuance of any policy of life insurance, nor shall it be deemed to modify the terms of an existing policy of life insurance. No policy of life insurance shall be legally impaired or invalidated in any manner by the withholding or withdrawal of health care from an insured principal.

Acts 1990, ch. 831, § 12.

34-6-214. Transfer of patient by health care provider.

Any health care provider shall arrange for the prompt and orderly transfer of a patient to the care of others when as a matter of conscience the health care provider cannot implement the health care decisions made by the attorney in fact for the principal as provided in a durable power of attorney for health care.

Acts 1990, ch. 831, § 13.

34-6-215. Power of attorney executed outside Tennessee — When effective.

A durable power of attorney for health care that is executed outside of this state by a nonresident of this state at the time of execution shall be given effect in this state if that durable power of attorney for health care is in compliance with either this chapter or the laws of the state of the principal's residence.

Acts 1991, ch. 344, § 12.

34-6-216. Attorney in fact other than parent.

If a valid durable power of attorney for health care, executed pursuant to this part, designates a person other than a child's parent to consent to treatments or procedures, the power of attorney shall control.

Acts 1995, ch. 317, § 1.

Cross-References. For consent to a medical treatment by a minor, see § 63-6-229.

34-6-217. Effect and interpretation of durable powers of attorney.

A durable power of attorney for health care entered into before July 1, 2004, under this part shall be given effect and interpreted in accord with this part.
A durable power of attorney for health care entered into on or after July 1, 2004, that evidences an intent that it is entered into under this part shall be given effect and interpreted in accord with this part.
A durable power of attorney for health care entered into on or after July 1, 2004, that does not evidence an intent that it is entered into under this part may, if it complies with the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18, be given effect as an advance directive under that act.

Acts 2004, ch. 862, § 5.

34-6-218. Release of personal health information to determine capacity.

Where it is necessary, under the terms of a durable power of attorney to determine the mental or physical incapacity of a patient, a healthcare provider may release personal health information to a licensed physician or licensed attorney at law if the physician or attorney at law signs and furnishes the healthcare provider with an affidavit that the release of information is necessary to determine the mental or physical incapacity of the patient, or of the agent or other fiduciary under a durable power of attorney for health care that was signed by the patient where incapacity causes the document to come into effect, discontinues its effect or calls for a change in a fiduciary acting under the document.

Acts 2004, ch. 866, § 5.

Part 3
Power of Attorney for Care of a Minor Child Act

34-6-301. Short title.

This part shall be known and may be cited as the “Power of Attorney for Care of a Minor Child Act.”

Acts 2003, ch. 71, § 1.

34-6-302. Delegation of authority — “Parent” defined.

1. A parent or parents of a minor child may delegate to any adult person residing in this state temporary care-giving authority regarding the minor child when hardship prevents the parent or parents from caring for the child. This authority may be delegated without the approval of a court by executing in writing a power of attorney for care of a minor child on a form provided by the department of children's services. Hardships may include but are not limited to:
  1. The serious illness or incarceration of a parent or legal guardian;
  2. The physical or mental condition of the parent or legal guardian or the child is such that care and supervision of the child cannot be provided; or
  3. The loss or uninhabitability of the child's home as the result of a natural disaster.
2. A local education agency (LEA) is not required to enroll a student with a power of attorney stating a hardship other than one (1) of the three (3) specifically stated in subdivisions (a)(1)(A)-(C). The LEA may, however, enroll a student with a properly executed power of attorney for other hardships on a case by case basis.
The power of attorney for care of the minor child shall be signed by the parent and acknowledged before a notary public or two (2) witnesses who shall sign and date their signatures concurrently and in each other's presence.
For purposes of this part the term “parent” includes a legal guardian or legal custodian of the minor child.

Acts 2003, ch. 71, § 1; 2004, ch. 521, § 1; 2014, ch. 696, § 1.

34-6-303. Execution of instrument providing for power of attorney — Affidavit detailing hardship — Procedure when one parent has legal custody.

The instrument providing for the power of attorney shall be executed by both parents, if both parents are living and have legal custody of the minor child and shall state with specificity the details of the hardship preventing the parent from caring for the child. If only one (1) parent has legal custody of the minor child, then such parent shall execute the instrument. The other parent must consent in writing to the appointment in the instrument or the executing parent shall explain in the instrument why the consent cannot be obtained. If both parents do not execute the affidavit, then the executing parent shall send by certified mail, return receipt requested, to the other parent at the last known address, a copy of the instrument and a notice of § 34-6-305.

Acts 2003, ch. 71, § 1.

34-6-304. Authority of caregiver — Enrollment in local education agency — Restitution to school district for fraudulent enrollment.

1. Through the power of attorney for care of a minor child, the parent may authorize the caregiver to perform the following functions without limitation:
  1. Enroll the child in school and extracurricular activities;
  2. Obtain medical, dental and mental health treatment for the child; and
  3. Provide for the child's food, lodging, housing, recreation and travel.
2. Nothing contained in this section shall be construed to limit the power of the parent to grant additional powers to the caregiver.
The caregiver shall have the right to enroll the minor child in the local education agency serving the area where the caregiver resides. The local education agency shall allow a caregiver with a properly executed power of attorney for care of a minor child to enroll the minor child but, prior to enrollment, may require documentation of the minor child's residence with a caregiver or documentation or other verification of the validity of the stated hardship. Except where limited by federal law, the caregiver shall be assigned the rights, duties and responsibilities that would otherwise be assigned to the parent, legal guardian or legal custodian pursuant to title 49.
Further, any adult accepting the power of attorney, as well as the parent, guardian, or other legal custodian, who enrolls a student in a school system while fraudulently representing the child's current residence or the parent's hardship or circumstances for issuing the power of attorney, is liable for restitution to the school district for an amount equal to the per pupil expenditure for the district in which the student is fraudulently enrolled. Restitution shall be cumulative for each year the child has been fraudulently enrolled in the system. Such restitution shall be payable to the school district and, when litigation is necessary to recover the restitution, the adult accepting the power of attorney, parent, guardian or other legal custodian shall be liable for the costs and fees, including attorney's fees, of the school district. Such an action for restitution shall be brought by or on behalf of the district in the circuit or chancery court in which the district is located within one (1) year of the date the fraudulent misrepresentation was discovered.

Acts 2003, ch. 71, § 1.

34-6-305. Revocation of power of attorney.

The power of attorney does not provide legal custody to the caregiver; provided, however, that, if at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any healthcare or educational decisions for the minor child, the parent must revoke the power of attorney and provide the health care provider and local education agency either written documentation of the revocation or a court order appointing a legal guardian or legal custodian.

Acts 2003, ch. 71, § 1.

34-6-306. Termination of power of attorney.

The power of attorney for care of a minor child may be terminated by an instrument in writing signed by either parent with legal custody. The power of attorney for care of a minor child may also be terminated by any order of a court of competent jurisdiction that appoints a legal guardian or legal custodian.

Acts 2003, ch. 71, § 1.

34-6-307. Contravening decision by parent.

The decision of a caregiver to consent to or to refuse medical, dental, or mental health care for a minor child shall be superseded by any contravening decision of the parent having legal custody of the minor child; provided, however, that the decision of the parent does not jeopardize the life, health, or safety of the minor child. If at any time the parent or legal guardian disagrees with the decision of the caregiver or chooses to make any healthcare decisions for the minor child, then the parent must revoke the power of attorney for care of a minor child and provide the health care provider written documentation of the revocation.

Acts 2003, ch. 71, § 1.

34-6-308. Liability for reliance on power of attorney.

No person, school official, or health care provider who acts in good faith reliance on a power of attorney for care of a minor child to enroll the child in school or to provide medical, dental, or mental health care, without actual knowledge of facts contrary to those authorized, is subject to criminal liability or to civil liability to any person, or is subject to professional disciplinary action, for that reliance. This section shall apply even if medical, dental, or mental health care is provided to a minor child or the child is enrolled in a school in contravention of the wishes of the parent with legal custody of the minor child, as long as the person, school official, or health care provider has been provided a copy of an appropriately executed power of attorney for care of a minor child, and has not been provided written documentation that the parent has revoked the power of attorney for care of a minor child.

Acts 2003, ch. 71, § 1.

34-6-309. Residence change.

If the minor child ceases to reside with the caregiver, then the caregiver shall notify any person, school, or health care provider that has been provided the power of attorney for care of a minor child.

Acts 2003, ch. 71, § 1.

34-6-310. No obligation to inquire or investigate.

A person who relies on the power of attorney for care of a minor child has no obligation to make any further inquiry or investigation. Nothing in this part shall relieve any individual from liability for violations of other provisions of law.

Acts 2003, ch. 71, § 1.

Part 4
Health Care Decisions for Unemancipated Minor Children

34-6-401. Part definitions.

As used in this part:

“Health care” has the same meaning as defined in § 68-11-1802 of the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18;
“Health care decisions” has the same meaning as defined in § 68-11-1802 of the Tennessee Health Care Decisions Act;
“Health care institution” has the same meaning as defined in § 68-11-1802 of the Tennessee Health Care Decisions Act;
“Health care provider” has the same meaning as defined in § 68-11-1802 of the Tennessee Health Care Decisions Act;
“In loco parentis” means “in the place of a parent” and refers to the legal responsibility taken by a person or organization to assume some of the functions and responsibilities of a parent or legal guardian; and
“Reasonably available” has the same meaning as defined in § 68-11-1802 of the Tennessee Health Care Decisions Act.

Acts 2014, ch. 696, § 2.

34-6-402. Health care decisions for unemancipated minors — From whom obtained — Persons standing in loco parentis — Affidavit.

1. Health care decisions for an unemancipated minor child may be obtained from persons with authority to consent, including the appointed guardian or legal custodian, or the individual to whom the minor's custodial parent or legal guardian has given a signed authorization to make health care decisions through a military power of attorney or a limited power of attorney for the care of such minor child.
2. 1. When an individual listed in subdivision (a)(1) is not reasonably available, the following persons may stand in loco parentis for purposes of making health care decisions for an unemancipated minor in order of priority:
    1. Noncustodial parent;
    2. Grandparent;
    3. Adult sibling;
    4. Stepparent; or
    5. Another adult family member.
  2. The treating health care provider, an employee of the treating health care provider, an operator or employee of a health care institution, and an employee of an operator of a health care institution shall not stand in loco parentis.
  3. A person standing in loco parentis shall sign an in loco parentis affidavit under penalty of perjury stating that the person has taken responsibility for the health care of the minor child.
  4. The affidavit shall expire sixty (60) days from the date of execution, and may be extended an additional sixty (60) days.
The decision of a person standing in loco parentis to make health care decisions for an unemancipated minor shall be superseded by a prior or subsequent, timely given, contravening decision of the minor's custodial parent, legal custodian, or legal guardian.

Acts 2014, ch. 696, § 2.

34-6-403. Scope of power of person standing in loco parentis to make health care decisions — Limitations.

1. The parent, legal guardian, or legal custodian may, but is not required to, convey in loco parentis standing to another adult if there is no order of any court in effect from any jurisdiction, including an order of protection, custody order, or parenting plan, that would prohibit the parent, legal guardian, legal custodian or the person acting in loco parentis from exercising that power. A person shall not stand in loco parentis or make health care decisions for an unemancipated minor if there is an order by any court in effect from any jurisdiction that would prohibit the person from doing so, including an order of protection, custody order, or parenting plan, or in the circumstances described in § 33-3-111.
2. A person standing in loco parentis may make health care decisions for a person who is an unemancipated minor to undergo or receive health care which are not prohibited by law and which are under the supervision of and suggested, recommended, prescribed, or directed by a health care provider licensed to practice in this state.
3. A person standing in loco parentis may also exercise existing parental rights to obtain medical records and information.
Notwithstanding any other provision of this part, a person standing in loco parentis may not consent on behalf of an unemancipated minor to:
1. Withholding or withdrawing life sustaining procedures;
2. Abortion;
3. Sterilization;
4. Psychosurgery;
5. Admission to a mental health facility for a period longer than the durational limits permitted in § 33-3-606; or
6. Mental health treatment for a minor sixteen (16) years of age or older, pursuant to § 33-8-202.

Acts 2014, ch. 696, § 2.

34-6-404. Effect of in loco parentis standing.

In loco parentis standing:

Does not affect the rights and responsibilities of an unemancipated minor's parents or legal guardian or legal custodian regarding the care, custody, and control of the minor;
Does not affect the rights of an unemancipated minor to make health care decisions in accordance with existing law; and
Does not grant legal custody of the minor or authority to consent to the marriage or adoption of the minor.

Acts 2014, ch. 696, § 2.

34-6-405. Immunity from liability for person standing in loco parentis.

Except for acts of willful misconduct or gross negligence, a person standing in loco parentis who makes health care decisions for an unemancipated minor shall not be liable for damages arising from providing consent to such health care.

Acts 2014, ch. 696, § 2.

34-6-406. Immunity from liability for health care providers relying on authorization affidavit — Authorization affidavit does not confer dependency.

A health care provider who has no actual knowledge of facts contrary to those stated in an authorization affidavit and who relies on a written instrument that is consistent with the requirements of this part and provides health care to an unemancipated minor shall not incur civil liability, criminal culpability, or professional disciplinary action for treating an unemancipated minor without legal consent if a reasonable health care provider would have relied on the written instrument under the same or similar circumstances. Nothing in this part requires a physician, dentist, mental health professional, or other health care provider to rely on a written instrument or to accept health care decisions from a person standing in loco parentis.
An authorization affidavit does not confer dependency for health care coverage or insurance purposes.

Acts 2014, ch. 696, § 2.

Chapter 7
Public Guardianship for the Elderly

34-7-101. Short title.

This chapter shall be known and may be cited as the “Public Guardianship for the Elderly Law.”

Acts 1986, ch. 895, § 1.

Law Reviews.

Selected Tennessee Legislation of 1986, 54 Tenn. L. Rev. 457 (1987).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

34-7-102. Legislative intent — Construction.

The general assembly recognizes that many elderly persons in the state are unable to meet essential requirements for their physical health or to manage essential aspects of their financial resources. The general assembly finds that private conservatorship is inadequate where there are no willing and responsible family members or friends to serve as conservator and where the disabled person does not have adequate resources for the compensation of a private conservator, or to pay legal and court costs. The general assembly intends through this chapter to establish a statewide public conservatorship program to aid disabled persons who are sixty (60) years of age or older who have no family member or friend who is willing and able to serve as conservator.
The general assembly intends to promote the general welfare by establishing a public guardianship system that permits the disabled elderly to determinatively participate as fully as possible in all decisions that affect them, that assists such persons to regain or develop their capacities to the maximum extent possible, and that accomplishes such objectives through the use of the least intrusive alternatives. This chapter shall be liberally construed to accomplish these purposes. It is the intent of the general assembly that nothing contained in this chapter will affect the powers of the court under chapters 1, 2 and 3 of this title, nor create additional powers not contained in chapters 1, 2 and 3 of this title. The district public guardian shall not serve in more than one (1) capacity in any one (1) proceeding under chapters 1, 2 and 3 of this title.

Acts 1986, ch. 895, § 2; 1994, ch. 679, §§ 1, 2.

34-7-103. Creation and administration of statewide program.

A statewide program to provide guardianship for the elderly is created and will be administered by the commission on aging, which shall adopt policies and may promulgate rules to govern the operation of district public guardians within each development district, and implement the law. The commission shall provide a coordinator to monitor program development and operation, and shall contract with the grantee agencies in each of the nine (9) development districts which are the planning and service areas designated by the commission. Each grantee agency in the nine (9) development districts shall hire staff to serve as district public guardian in the planning and service area.

Acts 1986, ch. 895, § 3; 1987, ch. 333, § 1.

34-7-104. Powers and duties of district public guardian.

The duties and powers of the district public guardian are as follows:
1. To serve as conservator for disabled persons who are sixty (60) years of age or older who have no family members or other person, bank or corporation willing and able to serve as conservator;
2. The district public guardian does not have any power or authority beyond that set forth for a conservator in chapters 1, 2 and 3 of this title; and
3. To provide for the least intrusive alternatives, the district public guardian may accept power of attorney.
The district public guardian may employ sufficient staff to carry out the duties of the office.
The district public guardian may delegate to staff members the powers and duties of the office of district public guardian except as otherwise limited by law. The district public guardian retains ultimate responsibility for the discharge of required duties and responsibilities.
1. A district public guardian may accept the services of volunteer persons and organizations, and raise money to supplement operating costs.
2. The commission on aging, in consultation with the departments of human services and health, may develop and implement a statewide program to recruit, train, assign, supervise and evaluate volunteer persons to assist district public guardians in maintaining the independence and dignity of their elderly wards. In developing and implementing this statewide program, the commission on aging shall solicit input and resources from interested organizations, including, but not necessarily limited to, community senior citizen centers, churches and synagogues having senior projects and programs under the auspices of the American Association of Retired Persons. Each volunteer shall possess demonstrated personal characteristics of honesty, integrity, compassion and caring for the elderly. The background of each volunteer shall be subject to appropriate inquiry and investigation. Volunteers shall receive no salary but may be reimbursed by the commission on aging for travel and other expenses incurred directly as a result of the performance of volunteer services.
If the disabled person qualifies for SSI benefits, no charge will be made against the disabled person's estate for court costs or fees of any kind. Under no circumstances may court costs be assessed to the public guardianship program.
If the disabled person does not qualify for SSI benefits, costs and compensation of the district public guardian shall be determined under §§ 34-1-112 and 34-1-114.
1. All funds received on behalf of a disabled person by the district public guardianship program shall be handled under a computerized accounting package approved by the commission on aging, and shall be audited annually by the state.
2. All other assets received by the district public guardian shall be handled in accordance with state laws, rules and court regulation or regulations as to disposition of property and record keeping.
3. Upon termination of the conservatorship, all assets remaining in the estate shall be paid over to the disabled person or to the disabled person's legal representative.
While performing conservatorship duties, the district public conservator shall continue to seek a family member, friend, other person, bank or corporation qualified and willing to serve as conservator. If such an individual, bank or corporation is located, the district public conservator shall submit a motion to the court for appointment of the qualified and willing successor conservator.
A person appointed successor district public guardian immediately succeeds to all rights, duties, responsibilities and powers of the preceding district public guardian.
When the position of district public guardian is vacant, subordinate personnel employed under subsection (c) shall continue to act as if the position of district public guardian were filled.
A district public guardian shall be required to post bond in individual cases in accordance with § 34-1-105. The commission on aging shall arrange out of the program budget to purchase a statewide bond that shall ensure the fiduciary responsibilities of the district public guardian in all court appointed cases.
The district public guardian shall adhere to all state laws that are applicable to conservatorship.
To ensure adequate services for each disabled person, the district public guardian shall submit certification to the court when maximum caseload has been attained, and the court shall not assign additional disabled persons while maximum caseload is maintained. Maximum caseload shall be certified by the commission on aging upon review of verifying documentation submitted by the district public guardian and the grantee agency director. The district public guardian must notify the court when caseload has been reduced to less than maximum load.
1. Notwithstanding subsection (a) to the contrary, the executive director of the Tennessee commission on aging and disability may request the district public guardian to serve as a conservator for disabled persons who are younger than sixty (60) years of age if the following conditions are met:
  1. The request is made through a court; and
  2. The court has found on the record that:
    1. There are no other less intrusive alternatives available for the disabled person; and
    2. The disabled person has no family members or other person, bank, or corporation willing and able to serve as conservator.
2. Should the district public guardian take on the responsibilities of a guardian for a disabled person pursuant to subdivision (n)(1), the guardian must adhere, in performing the guardian's duty, to all provisions of this chapter and to all applicable state laws.

Acts 1986, ch. 895, § 4; 1987, ch. 333, §§ 2-8; 1994, ch. 679, §§ 3-16; 1997, ch. 327, § 1; 2019, ch. 230, § 1.

Amendments. The 2019 amendment added (n).

Effective Dates. Acts 2019, ch. 230, § 2. April 30, 2019.

Attorney General Opinions. Duties and liabilities of district public guardian. OAG 13-36, 2013 Tenn. AG LEXIS 37 (5/2/13).

34-7-105. Costs of public guardianship.

Costs of public guardianship for the elderly will be met by annual appropriation to the commission on aging.

Acts 1986, ch. 895, § 5.

Chapter 8
Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Part 1
General Provisions

34-8-101. Short title.

This chapter shall be known and may be cited as the “Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.”

Acts 2010, ch. 817, § 1.

34-8-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires, the terms shall have the same meaning as those defined in § 34-1-101.

Acts 2010, ch. 817, § 1.

34-8-103. International application of chapter.

A court of this state may treat a foreign country as if it were a state for the purpose of applying this chapter.

Acts 2010, ch. 817, § 1.

34-8-104. Communication between courts.

A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter. The court may allow the parties to participate in the communication. Except as otherwise provided in subsection (b), the court shall make a record of the communication. The record may be limited to the fact that the communication occurred.
Courts may communicate concerning schedules, calendars, court records, and other administrative matters without making a record.

Acts 2010, ch. 817, § 1.

34-8-105. Cooperation between courts.

In a conservatorship or guardianship or protective proceeding in this state, a court of this state may request the appropriate court of another state to do any of the following:
1. Hold an evidentiary hearing;
2. Order a person in that state to produce evidence or give testimony pursuant to procedures of that state;
3. Order that an evaluation or assessment be made of the respondent;
4. Order any appropriate investigation of a person involved in a proceeding;
5. Forward to the court of this state a certified copy of the transcript or other record of a hearing under subdivision (a)(1) or any other proceeding, any evidence otherwise produced under subdivision (a)(2), and any evaluation or assessment prepared in compliance with an order under subdivision (a)(3) or (a)(4);
6. Issue any order necessary to assure the appearance in the proceeding of a person whose presence is necessary for the court to make a determination, including the respondent or the incapacitated or protected person;
7. Issue an order authorizing the release of medical, financial, criminal, or other relevant information in that state, including protected health information as defined in 45 CFR 164.504, as amended.
If a court of another state in which a guardianship or protective proceeding is pending requests assistance of the kind provided in subsection (a), a court of this state has jurisdiction for the limited purpose of granting the request or making reasonable efforts to comply with the request.

Acts 2010, ch. 817, § 1.

34-8-106. Taking testimony in another state.

In a conservatorship or guardianship or protective proceeding, in addition to other procedures that may be available, testimony of a witness who is located in another state may be offered by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a witness be taken in another state and may prescribe the manner in which and the terms upon which the testimony is to be taken.
In a conservatorship or guardianship or protective proceeding, a court in this state may permit a witness located in another state to be deposed or to testify by telephone or audiovisual or other electronic means. A court of this state shall cooperate with the court of the other state in designating an appropriate location for the deposition or testimony.
Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the best evidence rule.

Acts 2010, ch. 817, § 1.

Cross-References. Best evidence rule, see Tenn. R. Civ. P., Rules 1001, 1002.

Part 2
Jurisdiction

34-8-201. Part definitions — Significant connection factors.

In this part:
1. “Emergency” means a circumstance that likely will result in substantial harm to a respondent's health, safety, or welfare, and for which the appointment of a conservator or guardian is necessary because no other person has authority and is willing to act on the respondent's behalf;
2. “Home state” means the state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months immediately before the filing of a petition for a protective order or the appointment of a guardian; or if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six (6) consecutive months ending within the six (6) months prior to the filing of the petition; and
3. “Significant-connection state” means a state, other than the home state, with which a respondent has a significant connection other than mere physical presence and in which substantial evidence concerning the respondent is available.
In determining under §§ 34-8-203 and 34-8-301(e) whether a respondent has a significant connection with a particular state, the court shall consider:
1. The location of the respondent's family and other persons required to be notified of the guardianship or protective proceeding;
2. The length of time the respondent at any time was physically present in the state and the duration of any absence;
3. The location of the respondent's property; and
4. The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver's license, social relationship, and receipt of services.

Acts 2010, ch. 817, § 1.

34-8-202. Exclusive basis.

It is the intent of this part to supplement any provisions of the Tennessee Adult Protection Act (the Act), compiled in title 71, chapter 6, part 1, to provide a basis for determining jurisdiction between this state and other states or foreign countries in any cases involving the protection of an adult by the courts of different states or countries. Notwithstanding the appointment of a guardian or conservator under this part, or under this title or any other provision of law, nothing in this title shall supersede the provisions of the Act, providing for the protection of vulnerable adults in need of protective services as defined in the Act, the authority of the department of human services under the Act to investigate cases of an adult who may be in need of protective services and to provide such services, or the jurisdiction of the court under the Act to order the provision of protective services or the establishment of a temporary guardian appointed by the court to secure and disburse the adult's property to fund such services. The court's orders under the Act shall supersede and suspend any orders entered under this title or any other law that addresses the protection, custody, including emergency temporary custody, of the adult or the disposition of property necessary to fund protective services for the adult under the Act; provided, however, that the ultimate determination of the jurisdiction of this state or another state or foreign country to enter orders for the adult's personal protection and financial welfare shall be determined under the jurisdictional provisions of this part.

Acts 2010, ch. 817, § 1.

34-8-203. Jurisdiction.

A court of this state has jurisdiction to appoint a conservator or guardian or issue a protective order for a respondent if:

This state is the respondent's home state;
On the date the petition is filed, this state is a significant-connection state and:
1. The respondent does not have a home state or a court of the respondent's home state has declined to exercise jurisdiction because this state is a more appropriate forum; or
2. The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:
  1. A petition for an appointment or order is not filed in the respondent's home state;
  2. An objection to the court's jurisdiction is not filed by a person required to be notified of the proceeding; and
  3. The court in this state concludes that it is an appropriate forum under the factors set forth in § 34-8-206;
This state does not have jurisdiction under either subdivision (1) or (2), the respondent's home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the constitutions of this state and the United States; or
The requirements for special jurisdiction under § 34-8-204 are met.

Acts 2010, ch. 817, § 1.

34-8-204. Special jurisdiction.

A court of this state lacking jurisdiction under § 34-8-203(1)-(3) has special jurisdiction to do any of the following:
1. Appoint a conservator or guardian in an emergency for a term not exceeding ninety (90) days for a respondent who is physically present in this state;
2. Issue a protective order with respect to real or tangible personal property located in this state; and
3. Appoint a conservator or guardian for a respondent for whom a provisional order to transfer the proceeding from another state has been issued under procedures similar to § 34-8-301.
If a petition for the appointment of a conservator or guardian in an emergency is brought in this state and this state was not the respondent's home state on the date the petition was filed, the court shall dismiss the proceeding at the request of the court of the home state, if any, whether dismissal is requested before or after the emergency appointment.

Acts 2010, ch. 817, § 1.

34-8-205. Exclusive and continuing jurisdiction.

Except as otherwise provided in §§ 34-8-202 and 34-8-204, a court that has appointed a conservator or guardian or issued a protective order consistent with this chapter has exclusive and continuing jurisdiction over the proceeding until it is terminated by the court or the appointment or order expires by its own terms.

Acts 2010, ch. 817, § 1.

34-8-206. Appropriate forum.

A court of this state having jurisdiction under § 34-8-203 to appoint a conservator or guardian or issue a protective order may decline to exercise its jurisdiction if it determines at any time that a court of another state is a more appropriate forum.
If a court of this state declines to exercise its jurisdiction under subsection (a), it shall either dismiss or stay the proceeding. The court may impose any condition the court considers just and proper, including the condition that a petition for the appointment of a guardian or issuance of a protective order be filed promptly in another state.
In determining whether it is an appropriate forum, the court shall consider all relevant factors, including:
1. Any expressed preference of the respondent;
2. Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;
3. The length of time the respondent was physically present in or was a legal resident of this or another state;
4. The distance of the respondent from the court in each state;
5. The financial circumstances of the respondent's estate;
6. The nature and location of the evidence;
7. The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;
8. The familiarity of the court of each state with the facts and issues in the proceeding; and
9. If an appointment were made, the court's ability to monitor the conduct of the guardian or conservator.

Acts 2010, ch. 817, § 1.

34-8-207. Jurisdiction declined by reason of conduct.

If at any time a court of this state determines that it acquired jurisdiction to appoint a conservator or guardian or issue a protective order because of unjustifiable conduct, the court may:
1. Decline to exercise jurisdiction;
2. Exercise jurisdiction for the limited purpose of fashioning an appropriate remedy to ensure the health, safety, and welfare of the respondent or the protection of the respondent's property or prevent a repetition of the unjustifiable conduct, including staying the proceeding until a petition for the appointment of a guardian or issuance of a protective order is filed in a court of another state having jurisdiction; or
3. Continue to exercise jurisdiction after considering:
  1. The extent to which the respondent and all persons required to be notified of the proceedings have acquiesced in the exercise of the court's jurisdiction;
  2. Whether it is a more appropriate forum than the court of any other state under the factors set forth in § 34-8-206(c); and
  3. Whether the court of any other state would have jurisdiction under factual circumstances in substantial conformity with the jurisdictional standards of § 34-8-203.
If a court of this state determines that it acquired jurisdiction to appoint a conservator or guardian or issue a protective order because a party seeking to invoke its jurisdiction engaged in unjustifiable conduct, it may assess against that party necessary and reasonable expenses, including attorney's fees, investigative fees, court costs, communication expenses, witness fees and expenses, and travel expenses. The court may not assess fees, costs, or expenses of any kind against this state or a governmental subdivision, agency, or instrumentality of this state unless authorized by law other than this chapter.

Acts 2010, ch. 817, § 1.

34-8-208. Notice of proceeding.

If a petition for the appointment of a conservator or guardian or issuance of a protective order is brought in this state and this state was not the respondent's home state on the date the petition was filed, in addition to complying with the notice requirements of this state, notice of the petition must be given to those persons who would be entitled to notice of the petition if a proceeding were brought in the respondent's home state. The notice must be given in the same manner as notice is required to be given in this state.

Acts 2010, ch. 817, § 1.

34-8-209. Proceedings in more than one state.

Except for a petition for the appointment of a conservator or guardian in an emergency or issuance of a protective order limited to property located in this state under § 34-8-204(a)(1) or (a)(2), if a petition for the appointment of a guardian or issuance of a protective order is filed in this state and in another state and neither petition has been dismissed or withdrawn, the following rules apply:

If the court in this state has jurisdiction under § 34-8-203, it may proceed with the case unless a court in another state acquires jurisdiction under provisions similar to § 34-8-203 before the appointment or issuance of the order; or
If the court in this state does not have jurisdiction under § 34-8-203, whether at the time the petition is filed or at any time before the appointment or issuance of the order, the court shall stay the proceeding and communicate with the court in the other state. If the court in the other state has jurisdiction, the court in this state shall dismiss the petition unless the court in the other state determines that the court in this state is a more appropriate forum.

Acts 2010, ch. 817, § 1.

Part 3
Transfer of Guardianship or Conservatorship

34-8-301. Transfer of guardianship or conservatorship to another state.

A guardian or conservator appointed in this state may petition the court to transfer the guardianship or conservatorship to another state.
Notice of a petition under subsection (a) must be given to the persons that would be entitled to notice of a petition in this state for the appointment of a guardian or conservator.
On the court's own motion or on request of the guardian or conservator, the disabled person, or other person required to be notified of the petition, the court shall hold a hearing on a petition filed pursuant to subsection (a).
The court shall issue an order provisionally granting a petition to transfer a conservatorship or guardianship and shall direct the conservator or guardian to petition for conservatorship or guardianship in the other state if the court is satisfied that the conservatorship or guardianship will be accepted by the court in the other state and the court finds that:
1. The disabled person or minor is physically present in or is reasonably expected to move permanently to the other state;
2. An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the disabled person or minor; and
3. Plans for care and services for the disabled person or minor in the other state are reasonable and sufficient.
The court shall issue a final order confirming the transfer and terminating the guardianship or conservatorship upon its receipt of:
1. A provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to § 34-8-302; and
2. The documents required to terminate a guardianship or conservatorship in this state.

Acts 2010, ch. 817, § 1.

34-8-302. Accepting guardianship or conservatorship transferred from another state.

To confirm transfer of a guardianship or conservatorship transferred to this state under provisions similar to § 34-8-301, the guardian or conservator must petition the court in this state to accept the guardianship or conservatorship. The petition must include a certified copy of the other state's provisional order of transfer.
Notice of a petition under subsection (a) must be given to those persons that would be entitled to notice if the petition were a petition for the appointment of a guardian or issuance of a protective order in both the transferring state and this state. The notice must be given in the same manner as notice is required to be given in this state.
On the court's own motion or on request of the guardian or conservator, the disabled or protected person or minor, or other person required to be notified of the proceeding, the court shall hold a hearing on a petition filed pursuant to subsection (a).
The court shall issue an order provisionally granting a petition filed under subsection (a) unless:
1. An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the disabled or protected person or minor; or
2. The guardian or conservator is ineligible for appointment in this state.
The court shall issue a final order accepting the proceeding and appointing the guardian or conservator as guardian or conservator in this state upon its receipt from the court from which the proceeding is being transferred of a final order issued under provisions similar to § 34-8-301 transferring the proceeding to this state.
Not later than ninety (90) days after issuance of a final order accepting transfer of a guardianship or conservatorship, the court shall determine whether the guardianship or conservatorship needs to be modified to conform to the law of this state.
In granting a petition under this section, the court shall recognize a guardianship or conservatorship order from the other state, including the determination of the disabled or protected person's incapacity and the appointment of the guardian or conservator.
The denial by a court of this state of a petition to accept a guardianship or conservatorship transferred from another state does not affect the ability of the guardian or conservator to seek appointment as guardian or conservator in this state under other chapters of this title if the court has jurisdiction to make an appointment other than by reason of the provisional order of transfer.

Acts 2010, ch. 817, § 1.

Part 4
Registration and Recognition of Orders from Another State

34-8-401. Registration of guardianship orders.

If a conservator or guardian has been appointed in another state and a petition for the appointment of a conservator or guardian is not pending in this state, the conservator or guardian appointed in the other state, after giving notice to the appointing court of an intent to register, may register the conservatorship or guardianship order in this state by filing as a foreign judgment in a court, in any appropriate county of this state, certified copies of the order and letters of office.

Acts 2010, ch. 817, § 1.

34-8-402. Effect of registration.

Upon registration of a conservatorship or guardianship or protective order from another state, the guardian or conservator may exercise in this state all powers authorized in the order of appointment except as prohibited under the laws of this state, including maintaining actions and proceedings in this state and, if the guardian or conservator is not a resident of this state, subject to any conditions imposed upon nonresident parties.
A court of this state may grant any relief available under this chapter and other law of this state to enforce a registered order.

Acts 2010, ch. 817, § 1.

Part 5
Miscellaneous Provisions

34-8-501. Uniformity of application and construction.

In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

Acts 2010, ch. 817, § 1.

34-8-502. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001, et seq.), but does not modify, limit, or supersede § 101(c) of that act (15 U.S.C. § 7001(c)), or authorize electronic delivery of any of the notices described in § 103(b) of that act (15 U.S.C. § 7003(b)).

Acts 2010, ch. 817, § 1.

34-8-503. Transitional provisions.

This chapter applies to guardianship and protective proceedings begun on or after January 1, 2011.
Parts 1, 3, and 4 and §§ 34-8-501 and 34-8-502 apply to proceedings begun before January 1, 2011, regardless of whether a guardianship or protective order has been issued.

Acts 2010, ch. 817, § 1.

Chapters 9, 10
[Reserved]

Chapter 11
Guardianships and Conservatorships Generally [Transferred]

34-11-101 — 34-11-131. [Transferred.]

Compiler's Notes. Former chapter 11, §§ 34-11-101 — 34-11-131, concerning guardianships and conservatorships generally, was transferred to chapter 1 of this title as §§ 34-1-101 — 34-1-131 in 2001.

Chapter 12
Guardianship Generally [Transferred]

34-12-101 — 34-12-106. [Transferred.]

Compiler's Notes. Former chapter 12, §§ 34-12-101 — 34-12-106, concerning guardianship generally, was transferred to chapter 2 of this title as §§ 34-2-101 — 34-2-106 in 2001.

Chapter 13
Conservatorship Generally [Transferred]

34-13-101 — 34-13-109. [Transferred.]

Compiler's Notes. Former chapter 13, §§ 34-13-101 — 34-13-109, concerning conservatorship generally, was transferred to chapter 3 of this title as §§ 34-3-101 — 34-3-109 in 2001.

Chapter 1 Guardianships and Conservatorships Generally

34-1-101. Chapter 1-3 definitions.

NOTES TO DECISIONS

1. Constitutionality.

2. Federal Law.

3. Due Process.

4. Disabled Person.

5. Hearings.

6. Conservator.

34-1-102. Parents as joint and equal natural guardians of minors — Custody of minors — Support of minors over eighteen (18) years of age in high school — Property of minor — Incapacity of parents — Divorce — Commitment of guardianship to county — Guardianship instrument.

NOTES TO DECISIONS

1. Custody.

2. —Rights of Parents.

3. —Rights of Intervening Parties.

4. —Review.

5. Support.

6. —Joint Obligation of Parents.

7. —Rights of Child.

8. —Suits to Recover Support.

9. —Post-Majority Support.

10. Parties to Suits.

11. Actions for Injury.

12. Visitation Rights.

13. Emancipation.

14. Security of Testamentary Trustee.

15. Court Control of Guardianship.

16. Custody of Wards.

17. Removal of Guardian.

18. Trial Procedure.

34-1-103. Duties of department of children's services when no natural guardian, or child abandoned.

NOTES TO DECISIONS

1. Power of State.

2. Appointment of Conservator.

3. Spouse.

34-1-104. Letters of guardianship or conservatorship — Disposition of funds of minor under $25,000 — Discharge of paying entities — Order of distribution — Distribution of funds — Direction of funds into trust.

34-1-105. Bond.

NOTES TO DECISIONS

1. In General.

2. Formalities of Bond.

3. Veteran's Guardianship Bond.

4. Liability of Guardian.

5. Liability of Sureties.

6. Actions on Bond.

7. Rights of Sureties.

8. Execution of Renewal Bond.

9. Liability on Renewal Bonds.

10. —Suits Against Sureties.

11. Liability on Additional Bonds.

12. Contribution Between Sureties.

34-1-106. Petition for appointment of fiduciary.

NOTES TO DECISIONS

1. Application by Testamentary Guardian.

2. Application by Husband.

3. Application of Purchaser.

4. Appointment of Guardian Ad Litem.

5. Application by Guardian Ad Litem.

6. Application by Next Friend.

7. Collateral Attack.

8. Validity of Sale.

9. Procedure.

34-1-107. Guardian ad litem.

NOTES TO DECISIONS

1. In General.

2. Jurisdiction.

3. —Juvenile Courts.

4. —Chancery Courts.

5. Appointment of Guardian.

6. Special Guardian.

7. Trustee May Act as Guardian.

8. Sale of Guardian Ad Litem Void.

34-1-108. Hearings on petitions — Notice.

34-1-109. When fiduciary's appointment becomes effective — Evidence of appointment — Liability — Fiduciary oath.

34-1-110. Management of property — Inventory — Filing — Failure to file or appear — Revocation of authority.

34-1-111. Accounting with court — Failure to account.

34-1-112. Compensation to fiduciary.

NOTES TO DECISIONS

1. In General.

34-1-113. Payments by fiduciary.

34-1-114. Charging of costs of proceedings.

NOTES TO DECISIONS

Chapter 1
Guardianships and Conservatorships Generally

Chapter 2
Guardianship Generally

Chapter 3
Conservatorship Generally