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

§ 34-1-107. Guardian ad litem.

The court may appoint a guardian ad litem in any proceeding and, except as provided in this section, shall appoint a guardian ad litem on filing of a petition for appointment of a fiduciary. If the respondent is represented by counsel who has made an appearance for the respondent, the court may appoint or continue the services of a guardian ad litem or may waive appointment or terminate the services of a guardian ad litem in the best interests of the respondent. 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 parent of the minor for whom a guardian is sought; A minor who has attained fourteen (14) years of age; or An adult respondent. 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 person with a disability. 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. 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. The guardian ad litem owes a duty to the court to impartially investigate the facts and make a report and recommendations to the court. The guardian ad litem serves as an agent of the court, and is not an advocate for the respondent or any other party. In each proceeding, the guardian ad litem shall: Verify that the respondent and each other person required to be served or notified was served or notified; Consult with the respondent in person as soon as possible after appointment; If possible, explain in language understandable to the respondent the: Substance of the petition; Nature of the proceedings; Respondent's right to protest the petition; Identity of the proposed fiduciary; and Respondent's rights as set forth in § 34-3-106; and Make a report and recommendations to the court concerning the issues of: Whether a fiduciary should be appointed for the respondent; If a fiduciary should be appointed, whether the proposed fiduciary is the appropriate person to be appointed; and Any other matters as directed by the court. In a proceeding for the appointment of a conservator, the guardian ad litem shall investigate the physical and mental capabilities of the respondent. The guardian ad litem's investigation shall include: An in-person interview with the respondent; and A review of the sworn report required by § 34-3-105 to verify that the sworn statement contains: A detailed description of the respondent's physical or mental conditions or both that may render the respondent a person with a disability; and A detailed description of how the respondent's physical or mental conditions or both may impair the respondent's ability to function normally. In a proceeding seeking the appointment of a fiduciary to manage the respondent's property, the guardian ad litem shall investigate the: Nature and extent of the respondent's property; and Financial capabilities and integrity of the proposed fiduciary. In evaluating the financial capabilities of the proposed fiduciary, the guardian ad litem may take such actions as directed by the court and as the guardian ad litem deems necessary, which may include but are not limited to: Obtaining and reviewing the proposed fiduciary's credit report; Inquiring into whether and to what extent the proposed fiduciary has previous experience in managing assets of the same or similar type and value as the respondent's assets; Inquiring into how the proposed fiduciary plans to manage the respondent's assets; Inquiring into whether the proposed fiduciary has previously borrowed funds from the respondent or received any financial assistance or benefits from the respondent; and Interview any persons with knowledge and review any documents pertinent to the financial capabilities and integrity of the proposed fiduciary. 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. 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: The respondent wants to contest: The need for a fiduciary; Merely the person to be the fiduciary; or Neither; 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; A fiduciary should be appointed and, if so, whether: The proposed fiduciary should be appointed; or Someone else, identified by the guardian ad litem, should be appointed; The proposed property management plan should be adopted and, if not, what changes should be considered. 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. 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. 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; 2013, ch. 435, §§ 9-13, 46. Compiler's Notes. Acts 2013, ch. 435, § 48 provided that the act, which amended this section, shall apply to actions commenced on or after July 1, 2013. Cross-References. Appointment of guardian ad litem in chancery court, § 21-1-701 . Chancery court jurisdiction, title 16, ch. 11, part 1. Restrictions on appointment of nonresident, § 35-50-107 . Law Reviews. A Quantum Leap for Ethical Guidance: Comparison of the Model Code and Rule 1.14 of the Proposed Rules of Professional Conduct (Donna S. Harkness), 35 No. 11 Tenn. B.J. 20 (1999).