Academic journal article The University of Memphis Law Review

Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee

Academic journal article The University of Memphis Law Review

Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee

Article excerpt

"Autonomy, an adult person's right to live life consistent with his or her personal values, is one of the bedrock principles of a free society."1

I. INTRODUCTION

Conservatorship2 is a judicial tool that enables a court to legally remove a disabled3 adult's decision-making capabilities and transfer them to a surrogate decision-maker for the purpose of protecting the disabled adult's person, property, or both.4 The Tennessee Conservatorship Act5 allows a court exercising probate jurisdiction6 to appoint conservators over disabled adults who are in need of either full or partial guidance and supervision in making decisions regarding their persons and property.7 Although the purpose of a conservatorship is to protect disabled adults in need,8 the harsh consequence of a conservatorship is that disabled adults lose numerous basic rights they formerly enjoyed as competent adults, such as deciding where to live and how to spend their money.9 This Note will focus on the due process rights of elderly adults affected by the Tennessee Conservatorship Act.

Although growing old does not automatically render a person disabled,10 conservatorship proceedings often have elderly adults as their subject.11 One reason is that the aging process makes some elderly people susceptible to mental impairment disorders.12 In addition, America's elderly population is growing.13 Recent statistics show that in 2003, 36.3 million people were age sixty-five or older, representing 12.4% of the population.14 This equals one in every eight Americans.15 Population reports project that these numbers will almost double, to 71.5 million, or 20% of the total population, by the year 2030.16 As a consequence, the number of elderly citizens who find themselves subject to a conservatorship is expected to rise.17

Like many Americans, the elderly often take for granted the right to live their lives with only minimal government intrusion.18 One Tennessee court recently explained that

[a]utonomy, an adult person's right to live life consistent with his or her personal values, is one of the bedrock principles of a free society. Our understanding of liberty is inextricably intertwined with our belief in physical freedom and self-determination,19 and in our belief in the fundamental right to acquire, own, and dispose of property.20

The loss of personal autonomy can be particularly devastating to the elderly who often equate autonomy with personal power, the loss of which can affect not only their self esteem but their desire to live.21 Unfortunately, personal autonomy is always lost to some degree when a person is placed under a conservatorship.22 Elderly adults under conservatorships often are subject to lose the right to live where they desire, make decisions regarding their own medical care, choose their friends, control their money, manage their property, decide to marry, sign a contract, or decide whether to be placed in a nursing care facility.23 Many states also allow a court to revoke the voting rights of a disabled adult under a conservatorship.24 Indeed, courts and commentators have compared the loss of freedom suffered by a disabled adult under a conservatorship to that suffered by a criminal following conviction.25

Because of the serious restrains on liberty an elderly person may face if placed under a conservatorship, the Constitution requires states to enact procedural safeguards to protect the elder's rights during a conservatorship proceeding. The Fourteenth Amendment to the United States Constitution guarantees that no State shall "deprive any person of life, liberty, or property, without due process of law."26 Although a conservatorship may deprive a disabled adult of substantial rights,27 states often ignored this constitutional guarantee and provided few due process protections until recently.28 Instead, states generally regarded conservatorship proceedings as benevolent, brought only to help a disable adult and, therefore, blithely disregarded many due process protections. …

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