Posted on: Apr 9, 2021
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"Yikes!" "Ouch!" "Oh No!" All things we might say when we're injured. The next thing we might ask ourselves is "What now?" If our injury was caused by someone else, at some point we are going to wonder, "Do I need to call an attorney?"
The answer will depend on several factors, not least of which is how severe the injury. Other considerations are how it happened, who is at fault, and whether or not that fault results in legal liability.
Here are some points to consider:
First, if the injury is severe enough to warrant medical treatment, be sure and obtain the needed treatment as soon as you can. Besides the basic need to take care of yourself, documentation of the injury is important should you need to pursue legal action later.
In Tennessee there is a one-year statute of limitations for filing most injury claims (T.C.A. §28-3-104(a)(1)). That does not mean that you necessarily need to call an attorney from your hospital bed, but it does mean that you should not wait too many months to talk to an attorney if you are badly injured. Evaluating the potential of a case and preparing to file suit takes time.
The attorney will evaluate whether or not the plaintiff (victim) can prove in a lawsuit that the actions of the defendant were either intentional, malicious, reckless or negligent. The most common standard used is negligence, under which the plaintiff must prove several things including duty of care, breach of that duty of care, that injury or loss was sustained by the plaintiff, and that the harm would not have occurred “but for” the defendant’s negligence.
Car accidents are commonly featured in advertisements because these items are easier to prove because of traffic laws and the availability of insurance coverage to fund compensation. Often these cases are settled before they come to trial. Importantly, most cases which are successfully pursued are ones in which BOTH parties have insurance. Situations in which one or the other party does not have insurance are difficult to resolve equitably.
Fall injuries are more complicated than most people initially believe, and proving negligence may be more challenging. Consider, for example, if someone spills a bottle of cleaner in a store aisle a few minutes before someone walks down the same aisle and slips on the puddle. If the store workers did not know of the spill, they may not have had a duty of care. An example of a fall situation which may be easier to prove a duty of care is if you hear someone say, for example, “I told them about that spot,” or “you’re the second (third, etc.) person to fall right there.” Because of this and the system of comparative negligence in Tennessee, falls are rarely simple cases, and if one is severely injured in a fall, it’s best to consult with an attorney who evaluates these types of injuries.
If you are injured at work, your injury will fall under Tennessee’s Workers’ Compensation laws. Visit www.tn.gov/workplace to learn about this system, which is governed under the Board of Workers’ Compensation and has its own system of courts and judges.
If you’re looking for a lawyer and just don’t know where to start, the Knoxville Bar Association’s LRIS is a great place to begin. We match you with a lawyer that suits your needs. Our trusted attorneys provide you with a free consultation so that you can decide if it’s the right fit. Want to learn more? Call us at (865) 522-7501 or visit knoxbar.org/lawyerfinder.
The materials contained in this blog are intended to, and do, provide only a broad overview of various legal topics. The general information contained in this material is not designed nor intended to be a substitute for legal advice on a specific legal issue or question. In addition, the information provided in this material is only general advice and may not be applicable to apparently similar individual problems, since only slight changes in facts may alter the applicable advice. If you have a legal problem or question, please consult an attorney.
Any publication, distribution, or other use of these materials without the express written consent of the Knoxville Bar Association is prohibited.
Posted on: Feb 4, 2021
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Our callers dealing with workplace injuries often report not knowing how to start finding assistance with their workers’ compensation matters. The good news is that there are many free resources available to assist the unrepresented injured worker. In this blog post, we thought it would be helpful to overview some of the available tools.
Ombudsman Program – (800) 332-2667, Monday - Friday, 7:00 AM - 4:30 PM CT. The Ombudsman Program exists “to assist injured or disabled employees” – among others – “in protecting their rights” when they “are not represented by an attorney.” Tenn. Code Ann. § 50-6-216(a). There are a variety of situations where an ombudsman might be able to provide assistance to an injured worker, including (1) problems obtaining a list of approved medical providers, (2) issues with authorization for medical treatment, (3) delays in receiving your benefits, and (4) claim denials even though you believe your injury was work-related. Currently there are four non-attorney and two attorney ombudsmen working for the Bureau of Workers’ Compensation (BWC). The licensed attorney ombudsmen are permitted to provide limited legal advice. Tenn. Code Ann. § 50-6-216(e)(3).
Mediation – Free mediation services are offered in all workers’ compensation cases, and are actually required in most cases before they can proceed to litigation. Mediation is a form of alternative dispute resolution where a mediator assists the parties in voluntarily reaching an agreement, and it has the benefits of often being quicker and less expensive than litigation. The BWC has trained mediation specialists who are well versed in Tennessee workers’ compensation laws and are striving to facilitate resolutions. Mediation occurs in private, and although the mediators are employees of the State, they do not have a stake in the outcome of your case. If you were injured on/after July 1, 2014, you can begin the mediation process by filing a “Petition for Benefit Determination.”
WC Bot – The “WC Bot” is a newer tool offered by the BWC that utilizes artificial intelligence to help injured workers fill out several relevant workers’ compensation forms at no cost. When you use the WC Bot, you will create an online account and then the WC Bot will “interview” you either through speech or text. The WC Bot can assist you in completing forms like the “Petition for Benefit Determination” and the “Request for Expedited Hearing.” The information shared with the WC Bot is kept private, and the WC Bot saves your progress so you can take a break and come back within two weeks to finish the process. The WC Bot was made possible through a partnership between the BWC and the Tennessee Alliance for Legal Services, LMU’s Duncan School of Law, and LawDroid.
Court Opinion Databases and Access to T.C.A. – The public can access the orders and opinions issued by the Tennessee workers’ compensation courts. The BWC has partnered with Court Listener to offer a free, searchable database, with the decisions from both the Court of Workers’ Compensation Claims and the Appeals Board. The BWC also has a link on their website to the relevant code, where you can peruse the workers’ compensation laws in Tennessee under Title 50, Chapter 6 of the T.C.A.
Other Resources – There are also numerous resources online designed to provide information to the injured worker about their rights. Here are a few more links that might be helpful:
Of course, if you still find yourself needing a worker’s compensation attorney, we hope you will give us a call for an attorney referral at (865) 522-7501 or online at www.knoxbar.org/lawyerfinder.
Special thanks to Presiding Judge Timothy W. Conner of the Tennessee Workers’ Compensation Appeals Board for inspiring and contributing to the content of this blog post.
The materials contained in this blog are intended to, and do, provide only a broad overview of various legal topics. The general information contained in this material is not designed nor intended to be a substitute for legal advice on a specific legal issue or question. In addition, the information provided in this material is only general advice and may not be applicable to apparent similar individual problems, since only slight changes in facts change the applicable advice. If you have a legal problem or question, please consult an attorney.
Posted on: Dec 22, 2020
Tax Tips for a Turbulent Time
As 2020 comes to a close, we wanted to talk about everyone’s favorite topic: taxes! Okay, maybe not everyone’s favorite, but there are several steps you can take now (and throughout the year) to make the process a little easier in 2021.
1) Gather Your Tax Records
You may want to begin gathering and organizing your records. Having all your necessary tax documents in one place will make the filing process smoother and prevent possible mistakes. Keep alert for relevant tax documents as they arrive from employers, banks, etc., and develop a system for keeping these documents handy and safe. In your tax records, you are going to want to include any W-2 forms from employers, 1099 forms from banks and other payers, and other income documents and records of virtual currency transactions.
If you received an Economic Impact Payment (EIP) this year, make sure you keep your Notice 1444 with your other tax records. This notice should have been mailed to your last known address by the IRS within 15 days of you receiving your EIP. This document may be especially relevant if you believe your EIP payout amount was wrong.
Related to the stimulus payments, you may be eligible for a Recovery Rebate Credit if you met the requirements in 2020 for an EIP but did not receive one or got less than the full amount. You can learn more about your eligibility for the Recovery Rebate Credit here: https://www.irs.gov/coronavirus/economic-impact-payment-information-center.
If 2020 was a year of many changes for you, remember to notify the IRS of address changes and the Social Security Administration of a legal name change. Keeping your information up-to-date will help prevent delays down the line.
2) Use the Tax Withholding Estimator
The IRS offers a tool on its website for estimating the appropriate amount of federal income tax that should be withheld from your paycheck. Withholding the correct amount now can prevent surprise tax bills or penalties later after you file your return. You may want to use the estimator to determine whether you should update your W-4 form with your employer.
3) Check the Status of Your Individual Tax Identification Number (ITIN)
Some federal taxpayers will have an Individual Taxpayer Identification Number (ITIN), which is a tax processing number issued by the IRS to certain individuals who do not have a social security number and are not eligible to obtain one. If you have an ITIN, the IRS recommends checking now to make sure that it has not expired. You can learn more about which ITINs are expired/expiring here: https://www.irs.gov/individuals/individual-taxpayer-identification-number.
You will want to file a renewal application as soon as possible if your ITIN is expired/expiring this year. This is an important step because if you file a tax return with an expired ITIN, you may experience delays in any refund you might be owed. You can download a copy of the Form W-7 here: https://www.irs.gov/forms-pubs/about-form-w-7.
We hope these simple steps may make the tax filing season a little less stressful in 2021.
This blog post is based on information shared by the IRS here: https://www.irs.gov/individuals/steps-to-take-now-to-get-a-jump-on-next-years-taxes.
Posted on: Nov 25, 2020
You hired an attorney to draft your will, and it is ready! So, now what? Who should keep the original and where? You have several options to consider, and we will explore the various pros and cons of each in this blog post.
You Keep the Will
There are several advantages to your holding on to your original will. For one, you can have the peace of mind that this important document is under your control. You do not have to worry if your attorney has moved offices or retired. If you move to another city or state, as many of us will in our lifetimes, you already have your original will with you and do not need to add the extra hassle of contacting your attorney to collect the document. You keeping your original will is just simple and easy.
Of course, there are downsides to keeping your original will. Most importantly, we all lose things! Especially during times of upheaval, like a move to a new house or an assisted living facility, items can be lost in the shuffle or accidentally purged in the process of downsizing. There are other possible downsides as well. For one, you might be tempted to make handwritten changes to your will over the years, which increases the risk that your will might be invalidated in its entirety by a probate court. Moreover, depending on where you keep your will, nosy relatives or possible heirs might discover its contents. And to keep your will truly safe from destruction and unwanted eyes, you may incur additional costs to invest in a bank safe deposit box or fireproof home safe.
A Note on Where to Keep Your Will
In deciding where to store your will, there are three main considerations: protecting the document from damage, knowing where it is located, and keeping the document confidential.
Attorney Keeps the Will
Given the possible risks of keeping you own original will, you might want to consider having your attorney keep the document. Attorneys generally have a lot of experience keeping records, and estate planning/administration attorneys often invest in the staff, systems, and infrastructure needed to safeguard documents like wills. In addition to their firm having a fireproof safe or bank safe deposit box, attorneys will often have procedures in place dictating and documenting when and how your will is accessed or moved. These additional protections can give you the assurance that your will is safe from inadvertent misplacement or destruction.
Additionally, having your attorney keep your will also encourages continuity because that attorney or firm will be contacted when you pass away. All things being equal, the attorney that prepared your will is best positioned to navigate the probate process for your estate.
There are several cons you might consider, though. Your attorney might leave their firm, retire, or pass away themselves, leaving your original will in possible limbo. Even with a developed document retention plan, if something changes with your attorney, you will have to decide whether to retrieve the document, have it follow the attorney, or leave it with the firm. Memories also fade, sometimes leaving you or your family members struggling to recall the name of the attorney or law firm that has the original. One note—if you have passed away and your family has forgotten who prepared your will, the Knoxville Bar Association will gladly contact our members to try and find that attorney.
Probate Court Keeps the Will
Another possible option is to file your will with the county probate office. Your original will is kept in a vault with limited access. There are usually small fees for this process and may be additional fees every time you want to access the will. In Knox County, you would bring your will to the Probate Division of the Chancery Court. They charge a $7 filing fee, and you can access your will during business hours with proper identification. This option has many of the safety and confidentiality benefits of having your attorney keep your original will.
The decision of where to keep your original will is yours, but we hope this blog post illuminates some of your options.
This post was adapted with permission from an article in the December 2020 DICTA, Volume 48, Issue 10, page 6, entitled “For There to Be a Way, There Must Be a Will” by O.E. “Sonny” Schow, IV of Woolf, McClane, Bright, Allen & Carpenter, PLLC. Check out the original article and more DICTA content on our website at www.knoxbar.org/DICTA.
Posted on: Nov 4, 2020
This Halloween, as we face our fears and approach the end of the year, we thought it would be a good time to talk about DEBT. At its most basic, “debt” is a consumer’s obligation to pay money arising out of a transaction. Pretty much everyone deals with debt in their lives. If you use credit cards, have a mortgage on your house, have a car loan, or pay student loans, you have debt.
Although debt is common, it can become a problem when you are no longer able to meet your various financial obligations. Maybe you unexpectedly lost your job or had to receive unplanned medical care. Maybe you had an expensive appliance break or experienced a natural disaster. Or maybe it’s just been a challenging year. For whatever reason, many people will face a financial crisis at some point.
Being proactive about your debt problems can be a good strategy to prevent a bad situation from getting worse. Here are six ideas to consider if you are feeling overwhelmed by your debt.
Knowing the terms of your agreement may be particularly useful if you have secured debt. Debt may be unsecured, i.e. not attached to a particular asset, or secured. Secured debt is debt that is backed by “collateral,” or in other words, an asset, like your car or your house. The collateral is designed to reduce the risk of lending to you. If you default on your obligation to pay, the asset securing the transaction may be repossessed or foreclosed upon. You will want to read your contract carefully to see what the creditor’s rights are when you do not make a full payment and whether there is any grace period built into your agreement.
There are potential risks to using one of these services and you always want to be mindful of possible scams. The FTC has a more in-depth guide on “Coping with Debt” that walks through the pros and cons of using debt relief services or pursuing debt settlement.
However, you should know that the federal Fair Debt Collection Practices Act (FDCPA) affords you certain protections in dealing with a debt collector. There are limits on when and how a debt collector can contact you. For example, a debt collector cannot generally call you before 8:00 AM or after 9:00 PM, and they must honor your written request to stop further contact. Debt collectors are not allowed to harass you, lie, or use unfair practices in trying to collect your debt. You can check out the full FDCPA here or read more about Debt Collection FAQs from the FTC.
The Consumer Financial Protection Bureau (CFPB) also has sample letters on how to respond to debt collectors, including how to request more information, state you do not owe the debt, and ask the debt collector to stop contacting you.
Here at the Lawyer Referral and Information Service, we are happy to provide you with a referral to a private attorney with experience in bankruptcy, debt collection, or consumer protection. The attorney will provide an initial free consultation and then let you know how much their services might cost. Just give us a call at (865) 522-7501 or contact us online at www.knoxbar.org/referral to get your free referral today.
Additional resources
Government Resources
More General Information
Posted on: Sep 10, 2020
If you are a residential tenant or landlord, then you likely want to know more about the Center for Disease Control and Prevention’s (CDC) recent national, temporary moratorium on evictions in response to the COVID-19 pandemic. We have crafted this blog post to answer some of your questions.
What is the temporary eviction moratorium and when does it start? For the next four months, from September 4th to December 31st, evictions are not allowed nationally under specific circumstances covered by the CDC’s Order.
Who is covered by the temporary eviction moratorium? Broadly, the temporary eviction moratorium applies to tenants with residential leases who expect to make less than $99,000 in annual income for the 2020 calendar year (or $198,000 if filing a joint tax return). The moratorium also applies to residential tenants who were not required to report any income to the IRS in 2019 or received a stimulus payment this year under the CARES Act.
But to qualify for the protections of the Order, there are several additional requirements. Residential tenants must provide their landlords with a formal declaration stating that they 1) have used their “best efforts” to get all available government assistance for rent or housing; 2) are unable to make a full payment for one of several reasons; 3) are making their “best efforts” to make timely partial payments under their individual circumstances; and 4) would likely be homeless, have to move into a homeless shelter, or have to move into a shared residence with people living in close quarters because they have no other available housing options.
Here are some exceptions, though:
What is the required Declaration? It is important to know that the protections of the Order are not automatic. Rather, tenants attempting to use the Order to prevent evictions are required to give their landlords a formal Declaration under penalty of perjury. Each adult listed on the lease agreement is required to execute a Declaration. Making false or misleading statements or omissions in the Declaration could expose tenants to civil fines or even criminal prosecution. You can find the declaration form on the CDC’s website.
Do tenants not have to pay their rent for the next four months? No, tenants still have an obligation to pay their rent, and the terms of their lease agreements/contracts still generally apply. In fact, tenants need to make their best efforts to make timely partial payments that are as close to the full payment as the tenants’ circumstances allow. If tenants do not pay their full rent on time, the Order permits landlords to charge or collect fees, penalties, or interest under the terms of their lease agreements/contract.
If the moratorium is not extended past December 31, 2020, landlords impacted by the Order will be able to pursue evictions for failure to pay rent then. State and local governments are also permitted to enact more rights protective provisions as well, so stay tuned to the actions of Tennessee state and local governments.
What are the penalties for landlords under the Order? Landlords should realize that the CDC’s Order has teeth. Persons or organizations violating the Order may be subject to large fines and/or jail time.
Is this moratorium lawful? We anticipate future litigation about this question. The CDC cites the Public Health Service Act as authorization for its action, but we expect to see legal challenges as to whether the CDC exceeded the scope of its authority or violated some provision of the constitution or administrative law.
Do I need an attorney? You might! We foresee both tenants and landlords needing legal help to navigate the provisions of the CDC’s Order. There are many “terms of art” used in the Order – like “best efforts” – that attorneys may be able to interpret for you or challenge in court. We anticipate the Order being used as a possible sword or shield depending on the facts of the case, and an attorney will be best positioned to guide you through your legal options.
Are you…
These are just some of the issues where an attorney’s assistance might be vital.
If you are considering hiring a private attorney to help with an issue related to the CDC’s Order, contact us today for a free referral and initial consultation at (865) 522-7501 or online at www.knoxbar.org/lawyerfinder.
If cannot afford a private attorney, please contact your local Legal Aid office. For Knoxville, call Legal Aid of East Tennessee at (865) 637-0484 or visit their website at www.laet.org. Also, the Legal Aid Society of Middle Tennessee and the Cumberlands is directing tenants to https://www.covid19evictionforms.com/ for help filling out the required Declaration.
Additional Resources
This blog post, while designed to be informative, is not a replacement for legal advice. Please consult an attorney about your legal issues related to the temporary eviction moratorium.
Posted on: Aug 17, 2020
With the ongoing impacts of COVID-19, how much of our lives have we put on hold? When the crisis first hit Knox County in mid-March, everything seemed to freeze, including our court system. Judicial evictions for non-payment of rent were temporarily paused absent extraordinary circumstances. Filing deadlines and statutes of limitation were extended. Jury trials were delayed, and hearings were continued. Even reaching a live person on the phone might have felt impossible. If you decided to wait to file that lawsuit you had in mind, you would have been in good company.
Things have changed. Five months later, Knox County courts have strived to establish a new normal. After being closed for all in-person matters for eight weeks this spring, Fifth General Sessions (Civil) has been fully reopened since early May. Tennessee courts generally resumed hearing eviction matters on June 1st.[1] Various statutory, administrative, and court rule deadlines were extended through June 5th, but not beyond.[2] The extension of orders of protection and temporary injunctions through June 15th has ended,[3] and the suspension of jury trials during the state of emergency lifted in early July.[4] While in-person contact may be limited in judges’ and court clerks’ offices, they are nevertheless required to remain open for business.[5] In many ways, the spring freeze of court operations has thoroughly thawed.
Because the courts lost several months of full operation, you might expect delays in filing new cases. However, as Esther Roberts, judicial clerk with the Knox County General Sessions Courts, reports, “There is no backlog per se.” Yes, cases from the spring were reset, and the courts are now trying to ensure proper social distancing protocols are being followed; but as a general rule, the court system is endeavoring to provide timely access.
Although the Knox County courts are operational, your experience in the courtroom will be different in the COVID-19 era. Several precautions have been adopted to make courtrooms safer. There are permanently installed “sneeze guards” in all the General Sessions courtrooms. There are also “social distancing” seating arrangements and temporary docket caps to allow individuals to stay as far apart as practicable. This summer Fifth General Sessions temporarily moved to a larger location in the Main Assembly Room of the City-County Building to allow larger dockets while still keeping social distancing guidelines in place. The Tennessee Supreme Court has ordered facial coverings to be worn by everyone at all times while inside the courthouse.[6]
Outside of the courtroom, Knox County General Sessions Courts have also taken additional precautions. In criminal cases, for example, the courts are offering video plea technology for defendants who are interested in entering a plea remotely. The Tennessee Supreme Court is actively encouraging local court systems to use technology whenever possible to reduce in-person contact and court time.[7] The court system has frequently advised attorneys to prepare their cases outside of the courtroom as much as possible.
Of course, as the pandemic evolves, the governmental and judicial responses will also likely evolve. As of this writing, federal protections from the CARES Act prohibiting certain evictions have lapsed[8] and our federal leaders have not come to an agreement about the next coronavirus bill. If and when a new federal coronavirus bill is enacted, you may want to turn to a trusted source of information to check how it might affect the local courts. The Knoxville Bar Association’s COVID-19 resource page is regularly updated with news from the courts and other legal developments: https://www.knoxbar.org/COVID-19. For questions specifically about Fifth General Sessions (Civil), feel free to contact the Court Clerk Charlie Susano at (865) 215-4038.
Bottom line: If you are still sitting on a potential lawsuit, stop waiting! While there are noticeable changes in Knox County courts, the courts are also hearing cases and no longer extending deadlines. Call the Knoxville Bar Association’s Lawyer Referral and Information Service today to get referred to a private attorney for an initial, free consultation: (865) 522-7501.
[1] Supreme Court of Tennessee, Order Extending State of Emergency and Easing Suspension of In-Person Court Proceedings, No. ADM2020-00428, filed May 26, 2020. Accessible online at https://www.tncourts.gov/sites/default/files/docs/tsc_order_5-26.pdf.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Supreme Court of Tennessee, Order Regarding Face Coverings, No. ADM2020-00428, filed July 9, 2020. Accessible online at http://tncourts.gov/sites/default/files/docs/order_regarding_face_coverings.pdf. There are exceptions to the requirement for children 12-years-old or younger and certain individuals for health-related reasons.
[7] Supra, Order Extending State of Emergency and Easing Suspension of In-Person Court Proceedings, No. ADM2020-00428
[8] “Courts Reopening and Evictions,” brochure provided by the Legal Aid Society of Middle Tennessee and the Cumberlands, accessible online at https://las.org/wp-content/uploads/2020/08/Courts-Reopen-Housing-Zac.pdf.
Posted on: May 20, 2020
There are many competing perspectives on estate planning; some people recognize the importance, while others believe that they would not benefit from crafting one. If you have not started on an estate plan for you and your family, understand that you are certainly not alone. In fact, you are in the majority. We understand it can be uncomfortable to consider your own mortality and how it might affect your loved ones.
Another reason why many people do not have any estate-planning documents is because they believe that estate plans are only for the rich and elderly. The fact is that any adult – yes, even you! – can benefit from having an estate plan in place. Current events have shown us that everyone’s day-to-day routines and livelihoods can quickly and dramatically change. When life is turned upside down, the important things (like your children, spouse, and loved ones) tend to come into focus.
Wills
The Last Will and Testament (more commonly referred to as Wills) is probably the best-known estate planning document, and for good reason: the foundation of almost any estate plan is set with this form. A Will has many possible uses; it can:
Trusts
For people with fairly high net-worth estates, a trust can be a very important estate-planning tool. A trust is a legal document that sets up one place where the trustor can place multiple assets. While the trustor (creator of the trust) is still alive, he or she retains control over the items in the trust, acting as both the trustor and trustee. The trustor (sometimes called the “grantor”) also appoints a successor trustee who distributes the assets in the trust to the beneficiaries as desired by the trustor. One benefit of trusts is that you can avoid the federal estate tax if it applies.
Avoiding Probate Court
If you pass away without an estate plan, then your estate will most likely need to be settled through the Tennessee probate court system. This can be a long, expensive, and stressful process for your loved ones. Additionally, you risk having your assets distributed to individuals whom you would not want to receive them. One advantage of having a Will or trust (or both) is that you greatly reduce the time spent in probate court.
Conclusion
The best time to start on your estate plan is right now, while you are of sound mind and body. You never know what tomorrow might bring, which is why you need a plan today. The Knoxville Bar Association would be glad to connect you with an estate-planning attorney; reach out to us soon at 865-522-7501 to get the process started!
Posted on: Apr 16, 2020
Many parents in shared-parenting arrangements are concerned about sending their child to the other parent’s home, thereby possibly exposing the child to other sources of COVID-19 infection. Do you have to comply with a Permanent Parenting Plan or court order, and what are the consequences if you don’t?
First, parents are allowed to modify the exchange schedules in a Permanent Parenting Plan if they do so by agreement. If you and the other parent both believe that a co-parenting schedule should be changed to protect your child, and you can agree to a temporary alternative plan, do it. As long as the change is agreed to by both parents there should be no consequences.
If a modification to a parenting plan is not agreed between the parents, either parent who fails to follow the plan may be subject to having the other parent file a petition in court to enforce the plan and/or to have the offending parent held in contempt of court. Do not assume that current stay at home orders from local or state government will protect you. Tennessee Executive Order 22 (March 30, 2020) and Executive Order 23 (April 2, 2020) both state that essential travel, not restricted by the orders, includes “travel required by law, law enforcement, or court order, including to transport children pursuant to a custody agreement.” A parent who violates an existing exchange order may claim immediate risk of harm to the child as a defense, but the general risk of community infection may not be enough to avoid being held in contempt.
It’s difficult to predict how courts will respond to requests for enforcement of parenting plans under these circumstances. If exchanging a child between parents creates an immediate risk of infection (i.e., someone in your home or the other parent’s home has been diagnosed positive for COVID-19 or has been knowingly exposed to it and is in quarantine), it’s unlikely any court would penalize a violation. If the risk from exchanging a child between households is not greater than the general community risk of infection, the best advice is follow the plan unless agreed otherwise.
It is our hope that this information will help you make appropriate decisions in your own circumstances. However, if you have specific questions or concerns for which you need guidance, we encourage you to seek advice from an attorney.
Ted Kern focuses his practice on family law. This column is provided through the Knoxville Bar Association, your trusted source for lawyer referrals. The KBA is a nonprofit corporation that offers community service programs such as the Lawyer Referral & Information Service, speakers’ bureau, and public education programs.
During these uncertain times brought about by the spread of Covid-19/the Coronavirus, many people have questions about the legal needs of loved ones who may be experiencing issues with diminished capacity or adult children with special needs. The following information is intended to provide some brief insight into Conservatorship actions in Tennessee but it is not legal advice. You should consult an attorney about your specific needs before taking any action.
Standard Conservatorships – A Conservator (sometimes called a guardian) is appointed by a court to perform specific functions on behalf of a person who has been declared legally incompetent (sometimes called a “ward”). The ward cannot revoke or change a court ordered conservatorship or overrule the conservator who has been appointed by the court. Only the conservator can perform the specific powers transferred to the conservator which have been removed from the ward by the court. A conservator only has the powers specified in the court order signed by the judge. These powers may be quite broad or very limited. The court must only transfer those powers that are necessary for the ward’s protection. A Conservatorship is a type of litigation. This proceeding is begun when a sworn petition requesting the appointment of a conservator and the transfer of specific powers to that conservator is filed in the proposed ward’s county of residence. The appointment of a conservator becomes effective after the court enters an order, following a hearing and letters of conservatorship are issued by the court clerk. The conservator may have to post a bond in order to be appointed. A sworn report from a physician who examined the ward within the last 90 days must be filed in support of the petition signed by the proposed conservator. The petitioner must prove with clear and convincing evidence that the ward requires a conservator.
Emergency Conservatorship – An emergency conservatorship can be obtained when the court finds that compliance with standard conservatorship proceedings is likely to result in “substantial harm to an individual’s heal, safety or welfare” and not other person, including a power of attorney or agent has authority or is willing to protect the individual. In these circumstances the court may appoint an emergency conservator whose authority may not exceed sixty (60) days and who may exercise only the powers specified in the order of appointment. While the court may appoint the emergency conservator without notice to the ward, the ward must receive notice of the appointment within 48 hours and the court is required to hold a hearing on the appropriateness of the appointment within five (5) days. At the end of sixty (60) days the emergency conservatorship terminates unless some other action is taken to either extend it or convert it to a standard conservatorship.
Hopefully, this information has been of assistance to you. If you have a question about any of these documents, we encourage you to seek legal advice.
