(a) A fiduciary is limited in its investments to the investments permitted by title 35, chapter 3 unless estate funds or property, or both, are transferred to a trust created pursuant to the Tennessee Uniform Trust Code, compiled in title 35, chapter 15. All funds held by a fiduciary shall be invested within forty-five (45) days of receipt of the funds unless otherwise allowed by the court.
Terms Used In Tennessee Code 34-1-115
Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
Code: includes the Tennessee Code and all amendments and revisions to the code and all additions and supplements to the code. See Tennessee Code 1-3-105
Conservatorship: is a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators. See Tennessee Code 34-1-101
Court: means any court having jurisdiction to hear matters concerning guardians or conservators. See Tennessee Code 34-1-101
Fiduciary: means a guardian, coguardian, conservator, co-conservator, or qualified trustee as defined in §. See Tennessee Code 34-1-101
Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
Minor: means any person who has not attained eighteen (18) years of age and who has not otherwise been emancipated. See Tennessee Code 34-1-101
Person: means any individual, nonhuman entity or governmental agency. See Tennessee Code 34-1-101
Person with a disability: means any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection, and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity. See Tennessee Code 34-1-101
Property management plan: means the plan submitted by the fiduciary for the investment and management of the property of a minor or person with a disability. See Tennessee Code 34-1-101
Record: means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form. See Tennessee Code 1-3-105
Respondent: means a person who is a minor or is alleged to be a person with a disability for whom a fiduciary is being sought. See Tennessee Code 34-1-101
Trustee: A person or institution holding and administering property in trust.
written: includes printing, typewriting, engraving, lithography, and any other mode of representing words and letters. See Tennessee Code 1-3-105
(b) Except as provided in subsection (d), at the hearing for the appointment of a fiduciary, the proposed fiduciary shall present an outline of the proposed property management plan for the respondent‘s property. If the proposed property management plan cannot be presented at the appointment hearing, the fiduciary shall submit the proposed property management plan to the court for approval before any property is invested. The purpose of the property management plan is to advise the court of the general type of property in which the respondent’s property will be invested so the court will be assured the fiduciary will be making approved investments. The plan need not detail the individual asset or assets. For example, if the fiduciary plans to invest in certificates of deposit, the plan need only make that statement. It is not necessary to identify the individual institution or institutions whose certificates will be purchased.(c) Except as provided in subsections (d) and (f), each fiduciary shall request court approval to change the nature of the fiduciary’s investment or investments. Compliance with the preceding sentence does not require court approval to change the same type of investment from one institution to another. For example, changing a certificate of deposit from one institution to another does not require court approval. Changing from one type of investment to another does require court approval. For example, changing from a certificate of deposit to traded stock would require court approval. If the fiduciary’s property management plan describes proposed changes the fiduciary would make in response to economic and market conditions, the court may grant advance approval to make changes as described in the plan.(d) If the fiduciary is a financial institution, it shall not be required to seek court approval to change any investment.(e)(1) Notwithstanding any law to the contrary, no property management plan shall be required for the property of a minor or person with a disability if such property does not exceed twenty-five thousand dollars ($25,000) in value, unless, on the motion of any interested party, including the guardian ad litem, the court finds such plan would be in the best interest of such minor or person with a disability.(2) If no plan is filed pursuant to subdivision (e)(1), the fiduciary’s first accounting and all subsequent accountings shall state how the funds of the estate are invested and how the fiduciary proposes that the funds will be invested for the coming year.(f)(1) A fiduciary may petition the court to waive the requirement to request court approval to change the nature of any investment described in the property management plan as required by subsection (c). The waiver shall be within the court’s sole discretion, and the court may revoke the waiver at any time. In deciding upon the waiver, the court may consider the fiduciary’s history as a conservator, the length of conservatorship, the number of years the fiduciary has acted as a conservator, and any other factors that the court deems proper. The court may require the conservator to obtain professional advice or assistance regarding the investment of excess funds.(2) The court may approve the waiver request at a hearing for which all of the respondent’s heirs at law or beneficiaries had notice and an opportunity to be heard regarding the proposed waiver and change of the nature of the fiduciary’s investments.(3) If a waiver is approved by the court, the waiver shall be reduced to a written order. The fiduciary shall at all times maintain a minimum balance of funds sufficient to cover anticipated costs of care of the respondent for a minimum of three (3) years.(4) If a waiver is approved by the court, the fiduciary shall provide, in the accounting report required by § 34-1-111(b), a detailed outline of the investments made on behalf of the respondent and the current status of those investments. The purpose of the report is to assure the court that:
(A) The fiduciary maintains the minimum balance prescribed by the court;(B) The fiduciary is responsibly investing the respondent’s assets within the categories of investments approved in § 35-3-102;(C) The investment strategy demonstrates reasonable diversification to limit the risk of loss in vested funds;(D) There are no investments that would expose the respondent to any additional liability other than the possible depletion or loss of funds invested; and(E) The fiduciary keeps the court informed as to any changes in investments.(g) If funds are transferred to a trust as referenced in subsection (a), the fiduciary and trust protector are relieved of requirements under this title where trust assets, investments, and their financial nature require public disclosure or filing upon public record. A certification of trust outlined under § 35-15-1013 may be filed with the clerk of the court to show such trust is created. Such trust must be governed and administered by a qualified trustee as permitted by title 35. Further, the court clerk with personal jurisdiction over the person with a disability or minor must be named trust protector of said trust with powers prescribed by §§ 35-15-1201 – 35-15-1206.
