Conservatorships vs. Guardianships

On Behalf of | Oct 15, 2018 | Estate Planning

Under Tennessee law, a Conservator is “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 orders of the court.” Tenn. Code Ann. §34-1-101(4)(B). Similar to a conservator, but not quite the same, is a Guardianship. In Tennessee a Guardian, or coguardian, is defined as “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.” Tenn. Code Ann. §34-1-101(10). It is important to realize the difference between a Conservator and a Guardian. A Conservator protects any person, regardless of age, who is disabled in a way that affects their capacity. A guardianships purpose is to protect a minor child; they automatically do not have capacity based on their age.

Acting as Conservator or a Guardian is carries with it enormous responsibility. The Conservator or Guardian is a fiduciary of the other person. This means that they have a duty to act in the best interest of the person they are appointed to protect. As a fiduciary, they cannot, among other things, mismanage the other person’s funds, act on their own behalf, abuse their fiduciary relationship or neglect or fail to perform their duties. In other words, the Conservator or Guardian is appointed for the protection of the disabled person and because of this, they must act solely on behalf of and for the benefit of that person.

Because of their role as a fiduciary, a Conservator or Guardian is allowed to receive reasonable compensation for the services they render under Tennessee law. The court will set the amount of compensation that will be paid and in doing so, will take into account a number of factors such as: (a) the complexity of the property of the minor or person with a disability; (b) the amount of time the fiduciary spent in performing fiduciary duties; (c) whether the fiduciary had to take time away from the fiduciary’s normal occupation; (d) 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 (e) other matters as the court deems appropriate. Tenn. Code Ann. § 34-1-112.

If you are appointed as a Conservator or Guardian, or you are looking to have a Conservator or Guardian appointed for a loved one or someone you know, it is essential that you understand the legal procedures, duties and responsibilities, and the effects the appointment can have.