In 2021, the National Guardianship Network (NGN)¹ brought together 125 advocates, family guardians, judges, lawyers, scholars and other stakeholders for the Fourth National Guardianship Summit.² At the conclusion of the summit, delegates approved 22 final recommendations to improve and reform the adult guardianship system in the United States.³ Approximately 1.5 million adults are under active guardianship or conservatorship, according to Bloomberg Law.⁴ Nationally, the term “guardianship” is used to refer to what is known in Tennessee as “conservatorship.” The conservatorship system in Tennessee is conducted through the courts and aided by the clerks. Although conservatorships make up a very small portion of legal practice and are typically a part of elder law and probate practices, the impacts of the conservatorship system are far-reaching and touch many other areas of law. The summit recommendations were specific to the NGN, the federal government, government departments, state courts, and state and national stakeholders. Four years after the adoption of the recommendations, let’s see how Tennessee measures up, focusing on those recommendations directed at state courts and state stakeholders. Of the 22 recommendations, 13 were specific to states. The recommendations are divided into six sections with five applicable to states and state courts.

RIGHTS-BASED GUARDIANSHIPS — ENHANCING RIGHTS OF PERSONS SUBJECT TO GUARDIANSHIP

RECOMMENDATION 1.2 States and courts must ensure that all judicial proceedings which may impact any of an adult’s rights to legal capacity provide meaningful due process.

Tennessee is accomplishing this recommendation very well by providing counsel for emergency and contested proceedings; providing notice in the respondent’s preferred language; requiring a report of physician by a medical doctor; and providing an opportunity for the respondent to attend the conservatorship hearing. Tennessee is one of the 27 states (plus the District of Columbia)⁵ that requires the appointment of counsel at restoration proceedings. One area of weakness for this recommendation is that neither the state nor courts provide compensation for the lawyers that take these cases for indigent individuals.

RECOMMENDATION 1.3 States and courts must ensure full access to a full or partial restoration of rights as soon as possible after a right is legally restricted.

Tennessee gets a gold star here. Pursuant to Tenn. Code Ann. § 34-3-108, a conservator 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. The person with a disability or any interested person on the behalf of the person with a disability may petition⁶ the court at any time for a termination or modification order. Areas of weakness for this recommendation are that not all counties allow pro se access to the courts by respondents or interested parties and respondents are not routinely apprised of this right when the conservatorship is established.

Section 2 pertains to supporting decision-making. According to the Administration for Community Living, “supported decision-making (SDM) is one alternative to guardianship. With SDM, individuals retain their right to make decisions for themselves, with the support of trusted friends and/or family members they choose.”⁷ Tennessee is not doing exceptionally well in this area; however, stakeholders are making strides to get Tennessee in better alignment with supported decision-making.

RECOMMENDATION 2.1 States should provide education, training, and outreach programs about supported decision-making.

Currently, the Tennessee Center for Decision Making Support (TCDMS) provides educational opportunities and resources statewide. Aside from the center, there is limited widespread statewide education, training and outreach for supported decision-making.

RECOMMENDATION 2.2 Governments should expand supported decision-making practice and principles through promotion and expansion of sustainable (funded) pilot projects targeting diverse populations.

Currently, there are no specific supported decision-making laws in Tennessee by which to have a program. However, the Tennessee Department of Health has a Health Care Decision Making website⁸ that allows users to download advanced directives forms and information about the directives. The forms can be used to inform family members and doctors of decisions for health care if a person becomes unable to decide for themselves and make it possible to appoint someone known and trustworthy as the health care decision maker to ensure that the choices or decisions of the incapacitated person are honored.

RECOMMENDATION 2.3 Statutes, court rules, policies and processes in every state should require courts to consider supported decision-making as one of the alternatives to guardianship at appointment and periodically thereafter.

Currently, supported decision-making is not a term used regularly in state courts during conservatorship proceedings; however, courts have an affirmative duty to impose the least restrictive alternative⁹ for adults subject to conservatorship that are consistent with adequate protection of the person and property of the person with a disability. Therefore, there is an implication that courts should inquire whether the conservatorship is the most appropriate decision-making tool for the person with a disability when making their decisions to grant conservatorship petitions.

LIMITED GUARDIANSHIP, PROTECTIVE ARRANGEMENTS AND DIVERTING PIPELINES

RECOMMENDATION 3.1 States should adopt and implement the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCCOPA), including the provisions mandating representation by a lawyer of all adult respondents. State guardianship laws need to ensure better avenues, stronger protections and greater independence for individuals being considered for guardianship, and persons seeking to terminate or modify guardianship orders.

Tennessee conservatorship laws align well with this recommendation. Key provisions of the UGCCOPA are included in Tennessee statutes. Specifically, Tenn. Code Ann. § 34 requires less restrictive alternatives that meet an adult’s functional needs and specific court findings before certain critical rights (e.g., to marry and vote) are abridged. Additionally, there are mechanisms that adults subject to conservatorship and others can use to trigger modification or termination of an order. Laws specify that a lawyer for a respondent, or adults subject to guardianship, must represent the adult’s wishes and orders may be limited to removal of singular rights (e.g., medical only or financial only decision making).

RECOMMENDATION 3.2 States should eliminate plenary¹⁰ guardianship, allowing people to retain the maximum of rights, and if guardianship is imposed, require tailored guardianship orders in all cases.

Another gold star for Tennessee. The state sets the bar for conservatorship orders that are limited in scope and limited in time. Tennessee is the only state that currently offers the option of Expedited Limited Healthcare Fiduciary.¹¹ Pursuant to Tenn. Code Ann. § 34-3-107(a)(2) the court shall enter an order which shall 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 the powers of a person without a disability. To further protect the respondent, good cause is required to remove the rights to communication, visitation or interaction with other persons due to the Campbell Falk Act.¹²

RECOMMENDATION 3.3 Every state should have a guardianship diversion program tasked with facilitating alternatives to guardianship, reducing the likelihood that guardianships will be granted where not necessary, and monitoring for the continued need for the guardianship.

Tennessee does not have this specifically. However, the TCDMS offers an online tool where users can explore areas of their life where they may need help with making decisions and choose the right amount of decision-making support needed.

RECOMMENDATION 3.4 States should provide accessible, practical and tailored training to individuals and entities known to be pipelines¹³ to plenary guardianship on (1) the impact of guardianship; (2) legal and ethical obligations to exhaust alternatives to guardianship before pursuing it; (3) alternatives to guardianship including supported decision-making, formal and informal services and supports, advance directives, voluntary fiduciaries, other legal and non-legal interventions; and (4) orders that are limited in scope and limited in time.

There is no state-required training for any individuals or entities regarding conservatorships and potential alternatives. It should be noted, however, that the state public guardians (PG) are required to have training and national certification and that a few counties require conservatorship training prior to appointment by local court rule.

RETHINKING GUARDIANSHIP MONITORING AND ADDRESSING ABUSE

RECOMMENDATION 4.1 The state’s highest court should require ongoing collection of timely guardianship data.

Tennessee fails in this area, as statewide conservatorship data is very limited. There is no multidisciplinary user group to review and adopt data standards reflective and inclusive of the community’s diversity, monitor reporting, manage cases effectively, or evaluate policy. Additionally, statewide technology that includes mechanisms to validate reports, flag potential problems, and track monitoring does not exist. There are county-by- county practices for conservatorship data maintained by clerk’s offices; however, not all clerk’s offices have the mandated systems in place.¹⁴

RECOMMENDATION 4.2 States and courts should enhance the well-being and safety of all adults who have court-appointed guardians by implementing a post-appointment, person-centered monitoring system.

This does not exist in Tennessee. Moreover, the number of conservatorships and the amount of assets being managed by conservators is unknown.

RECOMMENDATION 4.3 The state’s highest court and state legislature should establish and identify or appropriate funding for advocacy measures to safeguard the rights of adults subject to guardianship, and to augment the court’s review process.

Tennessee fulfills two of the four objectives in this area. Continued representation by a qualified lawyer can be appointed at the outset of the case if requested and is appointed at the outset of all emergency conservatorship cases. Also, through state-funded programs such as Adult Protective Services and the Ombudsman, a complaint process exists for response to conservatorship conduct where there is abuse or neglect. Fortunately, Tennessee is a mandatory reporting state for abuse of the elderly and vulnerable adults.¹⁵

ADDRESSING FIDUCIARY RESPONSIBILITIES AND TENSIONS

RECOMMENDATION 5.1 States should regulate court-appointed professional guardians through licensure or certification, or both, with sufficient funding for an agency to implement and oversee licensure and certification and to vet, train, test and discipline these guardians, with flexibility in implementation, and with standards for education and training.

The PG program does have these requirements in place. However, many other professionals, mostly lawyers, are appointed without the need for certification or training of any kind.

RECOMMENDATION 5.3 State courts and other stakeholders should encourage training, education and support, to enhance autonomy and reduce reliance on approaches that restrict individual rights.

Although not through state courts, there are stakeholders like the TCDMS that provide information, tools and resources about decision-making options for people with disabilities.¹⁶

COMPLIANCE SCORE AND TASK FORCE CREATION

Overall, with the information currently available, Tennessee is compliant with three of the recommendations, partially compliant with five, and has much room for improvement with the other five. Despite this finding, Tennessee has some of the most protective laws for vulnerable individuals subject to conservatorship due to the option for limited conservatorships over plenary conservatorships and the right to counsel for those subject to conservatorship. According to the National Coalition for a Civil Right to Counsel, Tennessee is one of the 29 states where the right of appointment for protected persons in guardianship/conservatorship cases is offered but qualified.¹⁷

Fortunately, the Tennessee legislature passed a law this year that created a conservatorship management taskforce to assess and review conservatorship management statewide.¹⁸ Upon conclusion of the review, the taskforce will submit a report of its findings and recommendations to the Tennessee Department of Disability and Aging and the Administrative Office of the Courts. By taking this step, the task force will help Tennessee stay at the forefront of protecting vulnerable adults subject to a conservatorship. The hope is that the task force will be able to propose a solution that brings the state in better alignment with the National Guardianship Summit recommendations and produces attainable recommendations for the best protection for elderly and vulnerable adults under conservatorships. |||

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AMY WILLOUGHBY BRYANT serves as Director of the Nashville Office of Conservatorship Management. She demonstrates her passion for her community through service as a leader, instructor and volunteer in numerous organizations. Bryant serves as an adjunct professor at Belmont University College of Law in Elder Law. A Memphis native, she is a Tennessee State University alumna and obtained her law degree from Saint Louis University School of Law.

NOTES

1. NGN is an informal collaborative group of national organizations that have an interest in guardianship reform.
2. Recommendations of the Fourth National Guardianship Summit p. 1
3. Recommendations of the Fourth National Guardianship Summit p. 1
4. Ronnie Greene and Holly Barker, “Guardians’ Dark Side: Lax Rules Open the Vulnerable to Abuse,” Bloomberg Law, news.bloomberglaw.com/interactive/guardians-dark-side-lax-rules-open-the-vulnerable-to-abuse, March 6, 2023.
5. John Pollock and Megan Rusciano, “Right to Counsel in Restoration of Rights Cases,” www.americanbar.org/groups/law_aging/publications/bifocal/vol-42/vol-42-issue-4-march-april-2021/right-to-counsel-inrestoration-of-rights-cases/, Bifocal Vol. 42 Issue 4, March 11, 2021.
6. Tenn. Code Ann. § 34-3-108: A petition if made by the person with a disability, may be communicated to the court by any means including oral communication or informal letter.
7. Administration for Community Living, July 17, 2023, Supported Decision Making Program, acl.gov/programs/consumer-control/supported-decision-making-program
8. Tennessee Department of Health, www.tn.gov.
9. Tenn. Code Ann.§ 34-1-127.
10. According to the American Bar Association, a “plenary guardianship” is a guardianship in which the court gives the guardian the power to exercise all legal rights and duties for the ward, after the court finds the ward to be incapacitated. The two main subsets of plenary guardianships are guardians of the person and guardians of the estate.
11. Tenn. Code Ann. § 34-1-133.
12. wapp.capitol.tn.gov/apps/Billinfo/default.aspx?BillNumber=SB2190&ga=109.
13. The concept of pipelines to conservatorship are when systems, specifically workers with the system advise, guide or initiate conservatorship proceedings without exploring less restrictive alternatives. Known pipelines are schools, hospitals and nursing facilities.
14. Tenn. Code Ann. § 34-1-128: The clerk is tasked with maintaining docket books, files, minute books and other records for conservatorship cases. Additionally, the clerk shall maintain an appropriate index or tickler so that reporting deadlines are easily ascertainable. Furthermore, the clerk shall issue the notices and summons to each delinquent fiduciary and the clerk may prescribe forms or instructions as to the manner in which a fiduciary may render its inventory, receipts and expenditures.
15. Tenn. Code Ann. § 45-2-1202 defines “elderly adult” as “a person sixty-five (65) years of age, or older” and a “vulnerable adult” as “a person eighteen (18) years of age or older, who, because of mental or physical dysfunction, is unable to fully manage the person’s own resources, carry out all or a portion of the activities of daily living, or is unable to fully protect against neglect, exploitation or hazardous or abusive situations without assistance from others.”
16. Tennessee Council on Developmental Disabilities, Dec. 18, 2024, Supported Decision-Making, www.tn.gov/cdd/current-priorities/supported-decision-making.html.
17. National Coalition for a Civil Right to Counsel, Right to Counsel Activity/Status Map, civilrighttocounsel.org/map. (The established right to counsel or discretionary appointment of counsel is limited in some way, including: the only authority comes from a lower/intermediate court decision or a city government, not a high court/state legislature; a case has cast doubt on prior authority; a statute is ambiguous; or the right or discretionary appointment is not for all individuals or proceedings within that type of case.)
18. wapp.capitol.tn.gov/apps/BillInfo/Default.aspx.BillNumber=SB0233.