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In Tennessee what are the requirements for a physical or mental examination for the appointment of a conservator over a person?

Posted on Jun 27 2013 9:37PM by Attorney, Jason A. Lee

T.C.A. § 34-3-105 provides specific requirements for a physical or mental examination in conjunction with a petition for conservatorship under Tennessee law.  A conservatorship can be an important way to transfer legal and other powers to a responsible person to help someone who can no longer take care of themselves physically and/or mentally.  T.C.A. § 34-3-105(a) discusses the requirements for a physical or mental examination in order to establish the appropriateness of a conservatorship as follows:

 

(a) 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.

 

As a result, a written medial report should be submitted in support of the petition for conservatorship as long as it pertains to an examination made not more than 90 days prior to the filing of the petition.  If an examination has not been made within the 90 days of the filing of the petition then the court is required to order the respondent to submit to an examination and that report is made a part of the court record. 

 

The reports required under T.C.A. § 34-3-105 must contain specific information.  T.C.A. § 34-3-105(c) provides as follows:

 

(c) 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.

 

In 2013 the Tennessee legislature added a new part to this statute when it passed Public Chapter 435 which will go into effect on July 1, 2013.  Subsection (d) was added which provides that the examiner’s report is considered as prima facie evidence of the respondent’s disability.  T.C.A. § 34-3-105(d) 

 

(d) 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.

 

There were several other changes to Tennessee Conservatorship law in the 2013 legislative session found in Public Chapter 435 that will be discussed in later posts on this website in the months to come.

 

Follow me on Twitter at @jasonalee for updates from the Tennessee Wills and Estates blog.

TAGS: Tennessee Conservatorship, Guardian Ad Litem
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Jason A. Lee is a Member of Burrow Lee, PLLC. Contact Jason at 615-540-1004 or jlee@burrowlee.com for an initial consultation on wills estate planning and probate issues.

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Tennessee Wills and Estates Blog
Jason A. Lee, Member of Burrow Lee, PLLC
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E-mail: jlee@burrowlee.com

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