34-1-107 - Guardian ad litem. - Tennessee Statutes

34-1-107. Guardian ad litem.

(a)  (1)  Except as otherwise provided in this subsection (a), on the filing of a petition for the appointment of a fiduciary, the court shall appoint a guardian ad litem to represent the respondent. The court also may appoint a guardian ad litem to represent the interest of the minor or disabled person in any proceeding brought by the fiduciary. If the respondent is represented by adversary counsel who has made an appearance for the respondent, no guardian ad litem shall be appointed.

     (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:

          (A)  A parent of the minor for whom a guardian is sought;

          (B)  A minor who has attained fourteen (14) years of age; or

          (C)  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 disabled person.

(b)  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.

(c)  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.

(d)  (1)  The guardian ad litem owes a duty to the court to impartially investigate to determine the facts and report the facts to the court. The guardian ad litem is not an advocate for the respondent but has a duty to determine what is best for the respondent's welfare.

     (2)  In each proceeding, the guardian ad litem shall:

          (A)  Verify that the respondent and each other person required to be served or notified was served or notified;

          (B)  Consult with the respondent in person as soon as possible after appointment;

          (C)  If possible, explain in language understandable to the respondent the:

                (i)  Substance of the petition;

                (ii)  Nature of the proceedings;

                (iii)  Respondent's right to protest the petition;

                (iv)  Identity of the proposed fiduciary; and

                (v)  Respondent's rights as set forth in § 34-3-106; and

          (D)  Determine if the proposed fiduciary is the appropriate person to be appointed.

     (3)  In a proceeding for the appointment of a conservator, the guardian ad litem shall investigate the physical and mental capabilities of the respondent.

     (4)  In a proceeding seeking the appointment of a fiduciary to manage the respondent's property, the guardian ad litem shall investigate the:

          (A)  Nature and extent of the respondent's property;

          (B)  Financial capabilities of the proposed fiduciary; and

          (C)  Proposed property management plan.

(e)  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.

(f)  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)  (A)  The respondent wants to contest:

                (i)  The need for a fiduciary;

                (ii)  Merely the person to be the fiduciary; or

                (iii)  Neither;

          (B)  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:

          (A)  The proposed fiduciary should be appointed; or

          (B)  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.

(g)  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.

(h)  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.]