In Re Conservatorship of Groves

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 8, 2000 Session

IN THE MATTER OF:

THE CONSERVATORSHIP OF ELLEN P. GROVES

Appeal from the Chancery Court for Montgomery County

No. 98-03-0055 Carol Catalano, Chancellor

No. M2000-00782-COA-R3-CV - Filed February 11, 2003

This appeal involves the conservatorship of an elderly widow. Both the widow’s brother-in-law and

a niece filed petitions in the Chancery Court for Montgomery County requesting to be appointed her

conservator. Following a bench trial, the trial court determined that the widow was “competent”

and, therefore, dismissed both conservatorship petitions. The trial court also disapproved the

brother-in-law’s accounting of his expenditures on the widow’s behalf and directed the brother-in-

law and his wife to return the widow’s real and personal property to her. On this appeal, the

widow’s brother-in-law asserts that the trial court erred (1) by refusing to appoint him conservator,

(2) by refusing to approve reimbursing him for his expenses in caring for his sister-in-law, and (3)

by directing him to return his sister-in-law’s real and personal property. We have determined that

the evidence preponderates against the trial court’s conclusions that the widow is not disabled and

that she does not need a conservator. However, we have also determined that the trial court properly

declined to reimburse the widow’s brother-in-law for his expenses in caring for her and properly

ordered him to return her real and personal property.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part

and Vacated in Part

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,

and PATRICIA J. COTTRELL, J., joined.

Landon W. Meadow and Bruce A. Kennedy, Clarksville, Tennessee, for the appellant, Glendon P.

Groves.

Thomas R. Meeks, Clarksville, Tennessee, for the appellees, Ellen P. Groves and Cheryl Phillips

Travis.

OPINION

I.

Ellen Phillips Groves is currently eighty-eight years old. She was born in December 1914

and was one of twelve children. In 1936 she married Reilous Clifton Groves (“R. C. Groves”), and

the couple settled in Cheatham County. They had no children. According to one of Ms. Groves’s

nieces, Ms. Groves was a virtual slave to her husband during their marriage and “had no happy life

whatsoever.” During the 1990s, as age and frailty pursued them, Ellen and R. C. Groves began to

rely more and more on help and support of family members and friends to enable them to remain in

their home.

During their lengthy marriage, R. C. Groves and Ellen Groves acquired three tracts of real

property in Cheatham County valued at between $60,000 and $65,000. Their home, an old grocery

store they operated in the 1940s and 1950s, and R. C. Groves’s garage were located on this property.

They also accumulated over $118,000 in liquid assets,1 Mr. Groves’s mechanics tools and guns,

home furnishings, and a collection of old coins having a face value of $2,817.34.

R. C. Groves broke three ribs when he fell out of bed on March 16, 1994. His brother,

Glendon Groves, drove him to the emergency room of a hospital in Dickson where he was treated

and released the same day. He was returned to the hospital by ambulance on March 20, 1994, and

again on March 29, 1994. While still hospitalized in Dickson, R. C. Groves must have learned that

he was facing a lengthy convalescence and that he might never be able to return home. Accordingly,

he and his brother devised a plan to preserve R. C. Groves’s financial resources from being depleted

by medical expenses.

According to Glendon Groves, R. C. Groves decided to give him the $100,000 certificate of

deposit in return for his assurance that he would take care of R. C. Groves and Ellen Groves for the

rest of their lives. On the evening of April 3, 1994, Glendon Groves asked Donna Smith, one of his

brother’s neighbors who had been chauffeuring Ms. Groves to and from the hospital, to drive Ms.

Groves to the Dickson branch of the People’s Bank on their way to the hospital. The following

morning, Ms. Smith drove Ms. Groves to the bank where Ms. Groves told a bank employee that she

wished to redeem their certificate of deposit. Because the certificate of deposit had not yet expired,

the bank employee deducted the penalty for early withdrawal and gave Ms. Groves a cashier’s check

for $97,873.29 made payable to her. After driving Ms. Groves to the hospital to visit her husband,

Ms. Smith drove Ms. Groves to Glendon Groves’s flea market, Flea World, and observed her

handing the cashier’s check to Glendon Groves.

On April 6, 1994, R. C. Groves was moved from the hospital in Dickson to the Palmyra

Nursing Home in Montgomery County. On the same day, both he and Ms. Groves executed general

powers of attorney granting Glendon Groves authority to act on their behalf with regard to all

financial matters. Around this same time, Glendon Groves asked Ms. Smith to drive Ms. Groves

to the local office of the Department of Human Services to apply for food stamps, Medicaid, and

TennCare. Ms. Groves was approved for these benefits, and R. C. Groves also applied for and

became eligible to receive TennCare benefits on May 1, 1994.2

1

These assets included a $100 ,000 certificate of deposit at the People’s Bank in Dickson, Tennessee and

$18 ,258 in cash that R. C . Gro ves kept at his ho use.

2

All these government programs have income and asset eligibility requirements. Neither R. C . Grove s nor M s.

Groves would have qualified for these benefits as long as they owned the $1 00,0 00 certificate o f deposit. Accord ingly,

desp ite Glendon Groves’s protestations to the contrary, it is clear that either R . C. Groves or G lendo n Groves or both

of them decided to redeem the certificate of deposit and “give” the money to Glendon Groves in order to defraud the

(continued...)

-2-

R. C. Groves was somewhat eccentric about his possessions. Before he entered the nursing

home, he asked Ms. Smith to bring him the old coins and folding money he kept in his house. She

complied, and, after looking through it, R. C. Groves asked Ms. Smith to hide the money, $18,258

in bills and $2,817.34 in old coins, in a space underneath the refrigerator in his house. Ms. Smith

complied.

Glendon Groves did not cash Ms. Groves’s $97,873.29 cashier’s check immediately. He held

it until March 8, 1995, when he exchanged it at the Farmers and Merchants Bank in Clarksville for

a $97,873.29 cashier’s check made payable to him. Even after this transaction, he held the cashier’s

check without depositing it in the bank because he desired to avoid paying tax. Even though he

insisted that R. C. and Ellen Groves had given him the money to “do whatever you want to with it,”

he stated that he intended to use the money to take care of R. C. and Ellen Groves and that he had

“put it [the money] back in case I needed it.”

R. C. Groves became seriously ill in late September 1995 and was hospitalized in the

intensive care unit. On October 1, 1995, Ms. Smith, concerned that the money under the Groves’s

refrigerator would disappear, got permission from Ellen Groves to retrieve the money and take it

home for safekeeping. R. C. Groves died two days later on October 3, 1995. One week later,

Glendon Groves paid Buckner Funeral Home $7,384.21 for his brother’s funeral by cashing the

$97,873.29 cashier’s check, keeping $7,384.21, and obtaining another cashier’s check for

$90,489.08.

Following R. C. Groves’s death, Glendon Groves and his wife, Wilmuth, discovered that the

money R. C. Groves had kept in his house was missing and planted the seeds in Ellen Groves’s mind

that Ms. Smith had stolen it. On October 11, 1995, after Ms. Groves accused her of stealing the

money, Ms. Smith carefully inventoried and counted the folding money and coins and returned

$21,075.34 to Ms. Groves.3 According to Glendon Groves, Ms. Groves gave him the money outright

on October 11 or 12, 1995. He converted the coins to folding money and held the funds until the

trial court ordered him to deposit them in the bank.

Ellen Groves continued to live in her house in Charlotte after her husband died. As time

went by she became increasingly less able to care for herself. She came to rely more heavily on

Glendon and Wilmuth Groves. Other family members and her friends and neighbors had not lost

interest in her, but Glendon and Wilmuth Groves gave them the impression that they were not

needed or welcome at Ellen Groves’s house. Ms. Groves seemed to have turned against many of her

family and neighbors, and so many of them decided to stay away, believing that she had been

“brainwashed” by Glendon Groves and his wife. While she continued to live in her home, Ms.

Groves, with the assistance of Glendon Groves’s lawyer, prepared a new will that left the bulk of her

estate to Mr. Groves and his wife.

2

(...continued)

State of Tennessee.

3

Ms. Smith sought the assistance of her husband and Ray G roves, one of R. C. Groves’s brothers, in counting

the mo ney be fore she returned it.

-3-

In early September 1997, Ms. Groves fell and fractured her spine. She underwent surgery

and was hospitalized for approximately two weeks. The injury undermined Ms. Groves’s ability to

continue living independently in her own house. On September 16, 1997, she moved in with

Glendon and Wilmuth Groves who converted one of their children’s bedrooms for her use. At this

point, Ms. Groves relied completely on Glendon and Wilmuth Groves for her meals, lodging, and

care. For their part, Glendon and Wilmuth Groves discouraged visits by family members and friends

by telling them when they inquired that Ms. Groves was not up to visiting with anyone.

According to Glendon Groves, Ms. Groves decided to give him her real property after she

had been living in his house for approximately three months. Therefore, Glendon Groves asked his

lawyer to prepare two quitclaim deeds conveying the three tracts of real property to Glendon and

Wilmuth Groves. The lawyer brought the deeds to Glendon Groves’s house on December 8, 1997,

and Ms. Groves signed them while sitting in a rocking chair in Glendon Groves’s living room.

Ms. Groves’s stay with Glendon and Wilmuth Groves was short-lived. Their relationship

became strained after Ms. Groves chanced upon their daughter kissing her boyfriend at the bottom

of the stairs. In addition, Ms. Groves became convinced that Wilmuth Groves was stealing her

money and other personal belongings. Accordingly, Glendon and Wilmuth Groves decided to place

Ms. Groves in a nursing home. They reported to Dr. David L. Gullett, an internist in Clarksville, that

Ms. Groves was getting out of their home and wandering off and that she was hostile and paranoid

at times. Dr. Gullett concurred that Ms. Groves should be placed in a nursing home, and so on

February 23, 1998, Ms. Groves was moved to the Clarksville Manor Nursing home.4

Ms. Groves was upset and angry about being placed in a nursing home. Glendon Groves

thought that she was acting “arrogantly” towards him when he visited her, and he began to visit her

less frequently. Eventually he stopped visiting her altogether. It was at this point that several

members of Ms. Groves’s family, chiefly her nieces, Marlene Proctor and Cheryl Travis, began to

visit her more regularly. Ms. Proctor’s visits ended in April when her son was killed, but Ms. Travis

kept up her visits and talked with Ms. Groves’s daily by telephone. According to Ms. Travis, Ms.

Groves complained bitterly that Glendon and Wilmuth Groves had taken all her money and had put

her in the nursing home. In an effort to comfort her aunt, Ms. Travis told Ms. Groves that she was

welcome to live with her and her husband.

On March 11, 1998, Glendon Groves filed a petition in the Chancery Court for Montgomery

County, alleging that Ms. Groves was incompetent and seeking to be appointed her conservator. As

soon as the petition was filed, the court appointed a Clarksville lawyer to serve as Ms. Groves’s

guardian ad litem. Thereafter, on April 13, 1998, Ms. Proctor and Ms. Travis filed a response

opposing Glendon Groves’s petition and a cross-petition requesting that they be named Ms. Groves’s

4

Glendon Groves wrote a personal check for $2,306 for Ms. Groves’s first month in the nursing home.

Apparently Ms. G roves’s subseq uent expenses have, for the mo st part, been b orne by T ennC are. T he record is

ambiguous regarding whether Mr. Gro ves was ever reimbursed for the cost of the first month of M s. Gro ves’s stay in

the nursing home. In its final order, the trial court approved reimbursing him $1,772 for “the entry fee at the Clarksville

Manor Nursing H ome .”

-4-

co-conservators.5 Ms. Proctor and Ms. Travis alleged that Glendon Groves and Wilmuth Groves had

taken advantage of Ms. Groves’s deteriorating mental and physical condition by convincing her to

convey her real property to them and by unlawfully diverting the $100,000 certificate of deposit from

Ms. Groves to their own use. Glendon Groves responded by vigorously denying the allegations

contained in Ms. Travis’s and Ms. Proctor’s response and cross-petition and by filing a counterclaim

for defamation, intentional infliction of emotional distress, and abuse of process against Ms. Proctor

and Ms. Travis. Glendon Groves asserted that Ms. Groves’s nieces had caused him $200,000 in

damages.6

As time went by, Ms. Travis’s relationship with the nursing home staff became strained

because she was convinced that Ms. Groves was being over-medicated and was not being properly

cared for. For its part, the nursing home staff declined to address many of Ms. Travis’s concerns

because they viewed Glendon Groves as the responsible party with regard to Ms. Groves’s care. The

problems culminated on July 3, 1998, with a heated argument between Ms. Travis and the nursing

home staff over access to Ms. Groves’s medical chart. The nursing home eventually telephoned the

police to complain about Ms. Travis.

On July 20, 1998, Glendon Groves used the July 3, 1998 incident as a basis for seeking a

restraining order preventing Ms. Travis from visiting Ms. Groves in the nursing home. The trial

court filed an order on July 20, 1998, enjoining Ms. Travis from “entering the premises at Clarksville

Manor Nursing Home or harassing the staff or patients there in any way.” Still, the legal skirmishing

between Glendon Groves and Ms. Travis continued. First, Ms. Groves, with the assistance of Ms.

Travis’s lawyer, filed a motion requesting permission to move out of the nursing home and into Ms.

Travis’s home pending the trial.7 Glendon Groves opposed the motion on the ground that it was in

Ms. Groves’s best interests to remain in the nursing home and provided letters from a psychiatrist

and a clinical psychologist stating that it would not be in Ms. Groves’s best interests to leave the

nursing home. Ms. Groves, again with the assistance of Ms. Travis’s lawyer, moved to dissolve the

conservatorship because she believed that it was jeopardizing her health and property. Glendon

Groves also opposed this motion by providing a letter from a psychiatrist pointing out that Ms.

Groves “suffers from moderate to severe dementia, probably of the Alzheimer’s type.”

The trial court conducted a non-jury trial on December 20 and 27, 1999. At the conclusion

of the proof, the trial court invited Ms. Groves’s guardian ad litem to address the court. The

5

Ms. Proctor eventually voluntarily dismissed her request to be appo inted co-conservator after her son’s death,

leaving Ms. Travis to proceed on her own. However, Ms. Proctor remained opposed to Mr. Grov es being ap pointed M s.

Groves’s conservator.

6

Glendon Gro ves vo luntarily dismissed his claims against Ms. Proctor after she voluntarily dismissed her claims

against him.

7

The record contains no explanation concerning why Ms. Groves’s guardian ad litem did no t join in or otherwise

respond to this mo tion. T he ba sis for this mo tion was Ms. Gro ves’s claim that she was “apprehensive and very frightened

and suffers anxiety and stress about people being allowed to walk down the hallways, coming into her room and staring

at her at all times of the day a nd night.”

-5-

guardian ad litem observed that “basically every bad thing that Mr. Meeks8 has had to say about Mr.

Groves I agree with and every bad thing that Ms. Kersh9 has had to say about Mrs. Travis I pretty

much agree with.” After describing Glendon Groves’s handling of R. C. and Ellen Groves’s money

and property as “fast and loose to say the least,” Ms. Groves’s guardian ad litem also expressed

concern about whether Ms. Travis was truthful enough to be trusted with Ms. Groves’s real and

personal property. Accordingly, the guardian ad litem declined to recommend either Glendon

Groves or Ms. Travis to be Ms. Groves’s conservator.10

The trial court delivered its opinion from the bench immediately following the guardian ad

litem’s comments. After reciting a narrative of the facts in some detail, the trial court directed

Glendon Groves to return the real and personal property formerly owned by Ms. Groves and to make

a proper accounting of the money he had received and spent on her behalf.11 The trial court denied

Glendon Groves’s claims for payment for the food, cleaning services, and lodgings he and his wife

provided to Ms. Groves between May 1994 and February 1998.12 In addition, the court determined

that Ms. Groves was entitled to the proceeds from the rental of her house, as well as all the furniture,

tools, and equipment that had been in their house and R. C. Groves’s garage.13 Finally, the court

dismissed Glendon Groves’s slander claims and contempt petitions against Ms. Travis and dissolved

the restraining order preventing her from visiting Ms. Groves in the nursing home. Glendon Groves

has appealed from this order.

II.

ELLEN GROVES ’S CAPACITY TO MANAGE HER PERSONAL AND FINANCIAL AFFAIRS

The issue at the heart of this case is whether Ms. Groves has had the capacity since 1995 to

manage her personal and financial affairs. The trial court concluded that Ms. Groves is “competent”

because (1) she “retains the ability of long term memory,” (2) she is “able to express her will and

make decisions,” and (3) she is “capable of . . . making decisions as to where she wants to live.”

With all deference to the trial court, we have determined that the evidence in this record does not

8

Ms. T ravis’s lawyer.

9

One o f the lawyers representing G lendon G roves.

10

For some reason, Ms. Groves’s guardian ad litem did not mention using the district public guardian pursuant

to the Public Guardianship for the Elderly Law. Tenn. Code A nn. §§ 34-7-101, -105 (20 01).

11

In addition to the $97,873.29 from R. C. and Ellen Groves’s certificate of deposit and the $21,075.34 in coins

and folding money kept in their house, the trial court noted that Glendon Groves must also account for the $2,300 that

had been in Ms. Gro ves’s ba nk acc ount. The court specifically approved the following expenditures Glendon Groves

had already made: $7,3 84.2 1 for R . C. Groves’s funeral, $4,42 7.21 for advance funeral arrangem ents for M s. Groves,

$550 for headstones, $2,005.12 to the Palmyra Nursing Home, and $1,772 to the Clarksville M anor Nursing H ome .

12

Glendon Groves claimed that he was entitled to be paid $9,660 for the care he and his wife provid ed M s.

Groves after she moved in with them. In addition, he demanded $5,660 for food he d elivered to R. C. and Ellen Groves

between May 1994 and September 1997, and $7,240 for 181 trips to R . C. and Ellen G roves’s home between May 1994

and September 19 97.

13

The trial court specifically determined that Glendon Groves was entitled to the three rifles and the pickup truck

that R. C. Groves had given to him.

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support its conclusion that Ms. Groves is capable of managing her money and property, to make

healthcare decisions, to live independently with any degree of safety, or to execute a will.

A.

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. 14 Our understanding of liberty is inextricably

intertwined with our belief in physical freedom and self-determination, Cruzan v. Director, Missouri

Dep’t of Health, 497 U.S. 261, 287, 110 S. Ct. 2841, 2856 (1990) (O’Connor, J., concurring),15 and

in our belief in the fundamental right to acquire, own, and dispose of property. Lynch v. Household

Fin. Corp., 405 U.S. 538, 545-46, 92 S. Ct. 1113, 1118-19 (1972). Accordingly, adult persons have

a right to exercise autonomous self-determination. They have the right to choose how they live, how

they spend their money, and with whom they associate without undue governmental interference.16

When viewed as personal power, autonomy takes on added significance to elderly persons,

many of whom fear the loss of their independence and their ability to control their own lives.17 All

14

Carolyn L. Dessin, Financial Ab use of the Elde rly, 36 Idaho L. Rev. 203. 217 (2000) (“Dessin”); Rebecca

Dresser, Missing Persons: Legal Perceptions of Incompetent Patients, 46 Rutgers L. Rev. 609, 611 (1994); Leslie P.

Francis, Decisionmaking at the End of Life: Patients with Alzheimer’s or Other Dementias, 35 Ga. L. Rev. 539, 543

(2001) (“Francis”). Over one century ago, John Stuart Mill observed:

The only freedom which deserves the name, is that of pursuing our own good in ou r own way,

so long as we do not attem pt to deprive others of theirs, or imp ede their efforts to ob tain it. Each is

the proper guardian of his [or her] own health, whether bodily, or mental and spiritual. Mankind are

great gainers by suffering each other to live as seems goo d to themselves, than b y com pelling e ach to

live as see ms go od to the rest.

J O H N S TUART M ILL, O N L IB E RT Y 72 (Penguin Classics ed., Penguin Books 1974 ) (1859).

15

Justice Cardozo o bserved, “Every human being of adult years and sound mind has a right to determine what

shall be done with his [or her] own body.” Schloendorff v. Society of New York Hosp., 105 N.E. 92 , 93 (N.Y. 191 4).

16

Norman Fell, Guardianship and the Elderly: Oversight Not Overlooked, 25 U . To l. L. Rev. 189, 195

(1994)(“Fell”); Charles P. Sabatino, Competency: Refining Our Legal Fictions, in O LDER A DULTS ’ D E C IS IO N -M A K IN G

AND THE L A W 1 (Michael Smyer et al. eds., 1996).

17

Patricia A. Parme lee, Protective Services for the Elderly: Do We Deal Com petently With Incompetence?, 2

L. & P ol’y Q . 397, 4 15 (198 0) (“P arme lee”); Sherry L. W illis, Assessing Everyda y Co mp etenc e in the Cognitive ly

Challenged Elde rly, in O LDER A DULTS ’ D E C IS IO N -M AKING AND THE L A W 87 (M ichael Smyer et. al. eds., 1996)

(“Willis”).

Many elderly persons report that they fear the loss of the independence more than they fear dying or even abuse.

W illis, at 87. One elderly person for whom a guardian had been appointed observed: “I cannot tell you how much worse

my mental condition is since I have been a ‘thing’ of the court’s without rights. I want to die, I pray to die. There is no

happiness in my life – my life is over. I would prefer death to living as a guardianship zombie the rest of my life.”

Jeffrey Go od & Larry K ing, “I Am Not A Crimin al . . .”, St. Petersburg Times, D ec. 16 , 198 6, at 13 -A, reprin ted in

Abuses in Guardianship of the Elderly and Infirm: A National Disgrace, a Briefing of the Chairman of the Subcommittee

on Health and Long T erm Ca re, Select Co mmittee on A ging, House of Rep resentatives, 100th Congre ss, 1st Sess. (Sep t.

25, 1987), Comm. Pub. No. 100-641, U.S. Gov’t Printing Office, Washington, D.C. (1988). An American Bar

Association staff attorney has also obse rved that “[a] lot of older people are afraid that they’ll be put in a nursing home,

or they’re afraid that they’ll have a guardian ap pointed for them, and they’d rather be abused than have either of those

things happen to them.” Abuse of the Elderly on the Rise, National Public Radio, Morning Edition, May 16, 1995,

(continued...)

-7-

that many elderly persons have under their control is the prerogative to decide how to live out the

rest of their days and how and in what manner they will control their own property. Their ability to

exercise this control and to maintain their individual dignity often forms the basis for their self-

esteem and their belief in their continuing viability as a person.18 Thus, the loss of status as an

autonomous member of society can intensify any disability that an elderly person may have.19

Incapacity is the legal status that occurs when a person’s autonomy becomes either partially

or totally impaired.20 A person lacks the ability to be autonomous – to exercise free will – when he

or she lacks the ability to absorb information, to understand its implications, to correctly perceive

the environment, or to understand the relationship between his or her desires and actions. A person

is likewise incapacitated when he or she cannot control his or her actions or behavior.21 When a

person’s autonomy becomes impaired, public policy justifies others stepping in to make choices on

the person’s behalf to promote the person’s best interests and to protect the person from harm.22

However, public policy also favors allowing incapacitated persons to retain as much autonomy as

possible and selecting alternatives that restrict incapacitated persons’ autonomy as little as possible.

Tenn. Code Ann. § 34-1-127 (2001) (requiring that the “least restrictive alternatives” be placed upon

a disabled person consistent with adequate protection of the individual’s person and property).23

Conservatorship proceedings provide a forum for determining whether a person’s ability to

remain autonomous has become impaired. Even though these proceedings are intended to promote

the best interests of the vulnerable elderly, they carry with them the real possibility of displacing the

elderly person’s ability to make even the most basic decisions for themselves and to live their lives

unfettered by the control of others. Persons who are the subject of a conservatorship face a

substantial loss of freedom, In re Conservatorship of Reyes, 731 P.2d 130, 131 (Ariz. Ct. App.

1986); Edward v. Lamkins, 122 Cal. Rptr. 2d 1, 12 (Ct. App. 2002); In re Boyer, 636 P.2d 1085,

17

(...continued)

transcript available at 1995 W L 2958 309 (quo ting Lori Steegal, ABA staff attorney).

18

Fell, 25 U. Tol. L. Rev. at 195-96; Jan E. Rein, Preserving Dignity and Self-Determination of the E lderly in

the Face of Comp eting Interests and G rim Alternatives: A Prop osal for Statu tory Refocus an d Refo rm, 60 Geo. W ash.

L. Rev. 1818, 186 7 (1992 ).

19

ABA C O M M ’N ON THE M E N TA LL Y D ISA B LE D & ABA C O M M ’N O N L EGA L P ROBLEMS OF THE E LDE RLY ,

G U AR D IAN SH IP : A N A G E N D A F OR R EFORM 20 (1989 ) (Recomme ndations of the National Guardianship Symposium and

Policy of the American B ar Association) (“G U AR D IAN SH IP : A N A GENDA FOR R EFORM ”).

20

Francis, 35 Ga. L. Rev. at 542.

21

Lawrence A. Frolik, Statu tory D efinition s of Inc apa city: Th e Need F or a M edica l Basis, in O LDER A DULTS ’

D E C IS IO N -M AKING AND THE L A W 40 (M ichael Smyer et al. eds., 1996).

22

Fell, 25 U. Tol. L. Rev. at 196 ; Rob ert P. R oca, Determining Decisional Capacity: A Medical Perspective,

62 Fordha m L. Rev. 1177 , 1191 (199 4) (“Roca”).

23

Sally B. Hurme, Curren t Trends in G uardianship R eform, 7 Md. J. Contemp. L. Issues 143, 170-71 (1995-

1996); Jamie L. Leary, Note, A Review of Two Recently Reformed Guardianship Statutes: Balancing the Need to Protect

Individuals Who Cannot Protect Themselves Against the Need to Guard Individual Autonomy, 5 Va. J. Soc. Pol’y & L.

245 , 263 -64 (1 997 ); G U AR D IAN SH IP : A N A GENDA FOR R EFORM , Recomm endation IV -3, Co mmentary, at 20.

-8-

1090 (Utah 1981), that resembles the loss of freedom following a criminal conviction. In re

Conservatorship of Roulet, 590 P.2d 1, 3 (Cal. 1979); In re Guardianship of Hedin, 528 N.W.2d

567, 573-74 (Iowa 1995).24

Because of the importance of autonomy, it is well-settled that the law presumes that adult

persons are sane, rather than insane,25 and capable, rather than incapable, to direct their personal

affairs until satisfactory evidence to the contrary is presented.26 Mental or physical impairment

should never be presumed. Langston v. Allen, 493 S.E.2d 401, 403 (Ga. 1997); Carter v. Mississippi

Bar, 654 So. 2d 505, 513 (Miss. 1995); In re Lula XX, 637 N.Y.S.2d 234, 236 (App. Div. 1996);

Arnold v. Arnold, 657 S.W.2d 506, 507 (Tex. App. 1983). The force of these presumptions does not

wane as a person ages. Zawistoski v. Gene B. Glick Co., 727 N.E.2d 790, 794 (Ind. Ct. App. 2000).

Tennessee, unlike many states with updated conservatorship statutes, has not statutorily

defined the burden of proof in conservatorship cases. As a general rule, the party with the

affirmative of an issue has the burden of proof. Waste Conversion Sys., Inc. v. Greenstone Indus.,

Inc., 33 S.W.3d 779, 783 (Tenn. 2000); Freeman v. Felts, 208 Tenn. 201, 210-11, 344 S.W.2d 550,

554 (1961). Thus, in involuntary conservatorship proceedings, the burden of proof is on the person

or persons petitioning for the appointment of a conservator. Placing the burden on the petitioning

party is entirely consistent with other states’ statutory allocation of the burden of proof.

Because of the value our society places on individual autonomy and self-determination,

persons seeking the appointment of a conservator must prove by clear and convincing evidence that

the person for whom a conservator is sought is a “disabled person.” Tenn. Code Ann. § 34-1-126

(2001).27 This heightened standard of proof eliminates all serious or substantial doubt concerning

the correctness of the conclusions to be drawn from the evidence. Walton v. Young, 950 S.W.2d 956,

960 (Tenn. 1997); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001). Evidence satisfying this

standard will produce in the fact-finder’s mind a firm belief or conviction regarding the truth of the

24

Mark D. Andrews, The Elderly in Guardianship: A Crisis of Constitutional Proportions, 5 Elder L.J. 75, 93

(1997) (“And rews”); Bobbe Shap iro N olan, N ote, Functional Evaluation of the E lderly in Gu ardiansh ip Proceedings,

12 Law M ed. & Hea lth Care 210, 214 (198 4). Tenn. Cod e Ann. § 34 -3-10 4(8) (2001) states that p erson s adjudged to

be incapacitated may lose their right to vote, their power to dispose o f property, their pow er to execute lega l instruments,

their power to make purchases, their power to contract, their right to ho ld a valid driver’s license, and their right to

consent to medical treatment. See also , R OBERT N. B R O W N , T HE R IGHTS OF O LDER P E R SO N S 286 (19 70) (identifying

the persona l rights subject to restriction or curtailmen t in guard ianship or co nserva torship proceed ings).

25

State v. Phillips, 968 S.W .2d 874, 878 (Tenn. Crim. App. 199 6); Roberts v. Roberts, 827 S.W.2d 788, 794

(Tenn. C t. App . 199 1); Tennessee Consol. Coal Co. v. Layne, 26 Tenn. App . 635, 638, 176 S.W.2d 369, 370 (1943).

26

In re Phyllis P., 695 N.E.2d 851, 852 (Ill. 199 8); Beeman v. Department of Health and Mental Hygiene, 666

A.2d 1314, 1325 (M d. Ct. Spec. App . 199 5); In re Estate of Bob st, 630 N.Y .S.2d 228 , 231 (N.Y . Sur. Ct. 199 5); Ha ll

v. Ha ll, 352 S.W .2d 7 65, 7 67 (Tex. Civ. A pp. 1 962 ); Hauer v. Union State Bank, 532 N.W.2d 456, 461 (Wis. Ct. App.

1995); see also Mark Fowler, No te, Appointing An Agent To Make Medical Treatment Choices, 84 Colum. L. Rev. 985,

988 n.14 (19 84).

27

Many other states employ this heightened standard of proof in guardianship and conservatorship p roceed ings.

See, e.g., In re Gordy, 658 A.2d 613 , 616 -17 (D el. Ch. 1 994 ); In re G uardian ship o f Hed in, 528 N.W.2d 567, 580-81

(Iowa 199 5); In re C ons erva torship of Lu ndgaard, 453 N.W .2d 5 8, 61 (M inn. Ct. A pp. 1 990 ); In re Turnbough, 34

S.W .3d 225, 227 (Mo. Ct. App . 2000).

-9-

factual propositions sought to be established by the evidence. Fruge v. Doe, 952 S.W.2d 408, 412

n.2 (Tenn. 1997); O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

B.

The appointment of conservators in Tennessee no longer hinges on a determination of

incompetency.28 For the past ten years,29 conservatorship proceedings have focused on the capacity

of the person for whom a conservator is sought. Conservators may now be appointed only for

persons who are disabled. Tenn. Code Ann. § 34-1-101(7) defines a “disabled person” as

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.

As the law now stands, the threshold question in every conservatorship proceeding is whether

the person for whom a conservator is sought is disabled or incapacitated. If the answer is no, the trial

court cannot appoint a conservator.30 If, however, the answer is yes, the court must then determine

whether the person is fully or partially incapacitated and whether the incapacity is temporary or

permanent. The trial court must also determine, based on the nature of the incapacity, whether the

disabled person requires full-time supervision, protection, or assistance or whether partial

supervision, protection, or assistance will suffice. If the trial court determines that the disabled

person requires any sort of supervision, protection or assistance, it must enter an order appointing

a conservator and must specifically “[e]numerate the powers removed from the respondent and

vested in the conservator.” Tenn. Code Ann. § 34-3-107(2). Any power not specifically vested in

the conservator remains with the person for whom the conservator has been appointed.

C.

Tennessee’s conservatorship statutes do not define the concept of incapacity and do not

identify any particular illnesses or conditions deemed to be disabling or incapacitating. The

definition of “disabled person” alludes in the most general terms to “mental illness, physical illness,

developmental disability or other mental or physical incapacity.” Thus, while identification of the

28

Prior to 1993, the creation of a conservatorship or a limited guardianship required a judicial determination

of incompetence. Tenn. Code A nn. §§ 34-4-202, -302 (Re pealed 1992 ).

29

The Tennessee General Assembly revised and updated Tennessee’s guardianship and conservatorship statutes

in 1992. Act of Apr. 29, 1992, ch. 794, 1992 Tenn. Pub. Acts 407, codified at Tenn. Code Ann. §§ 3 4-1-101 through

-131, 34-2-101 through -106, and 34-3-101 through -109 (2001). The revision s were the pro duct of the efforts of a

legislative joint study committee and the Tennessee Bar Association’s Probate Study Committee. Donna R. Tate-

Hackett, Comm ent, Survey of the New Tennessee Guardianship and Conservatorship Act, 60 Tenn. L. Rev. 651, 651

n.2 (1993); Mary D. Colley & Colleen P . MacLe an, Changes in Tennessee’s Guardianship and Conserv atorship S tatute,

Tenn. B.J., Jan.-Feb. 1993, at 14-15.

30

In fact, if the trial court determines that a person is not disabled and dismisses the conservatorship petition,

it may, upon request, order the record of the proceedings to be expunged. Tenn. Cod e Ann. § 34-1-124 (20 01).

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disabling illness, injury, or condition is an important part of a conservatorship proceeding, the pivotal

inquiry involves not merely the diagnosis but also the effect that the illness, injury, or condition has

had on the capacity of the person for whom a conservator is sought.

Participants in conservatorship proceedings involving elderly persons should avoid the subtle

influences of ageism31 and the double standards that accompany it. The aging process, by itself, is

not a disabling condition, and being elderly is not tantamount to being disabled.32 The popular

notion that the aging process entails progressive decline in capacity or competence vastly

oversimplifies a complex process that affects an extraordinarily large and diverse group of persons.33

Even though the aging process can undermine aspects of a person’s physical and mental

health, poor health is not as prevalent among the elderly as many assume. Approximately 75% of

persons between 65 and 74 years of age and 65% of persons 75 years of age and over report that they

are in good health.34 Ninety-five percent of persons over 65 years of age and 80% of persons over

80 years of age are not affected by significant cognitive impairment.35 Many elderly persons are able

to minimize or overcome the effects of physical and mental decline because of their personal

characteristics, through treatment, and by adaption.36 Thus, a vast majority of the elderly are not

experiencing a progressive physical or mental decline.37

31

Dr. Robert N. B utler, the first director of the National Institute on Aging coined the term “ageism” in 1968.

He defined it as “a process of systematic stereotyping of and discrimination against p eop le because the y are old . . ..

[J]ust as racism and sexism accomplish this with skin color and gender . . . ageism allows the younger generation to see

older people as different from themselves; thus they subtly cease to identify with their elders as human beings.” Robert

N. B utler, Dispelling Ageism: The Cross-Cutting Intervention, 503 Annals Am. Acad. Pol’y & Soc. Sci. 138, 139 n.2

(1989) (quo ting paper p reviously presented ); R OBERT N. B UTLER , W H Y S URVIVE ? B EING O L D IN A MERICA 12 (197 5).

32

Tennesse e’s courts have consistently recognized this proposition. While extreme old age may “excite the

vigilance of the court,” Condry v. Coffey, 12 Tenn. App. 1, 19 (1930), advanced age, by itself, does not provide grounds

for appointing a conservato r or limited guardian. Hadley v. Latimer, 11 T enn. (3 Yer.) 537, 54 5 (1832 ); In re E state

of Oakley, 936 S.W.2d 259, 260 (Tenn. Ct. App. 199 6); Sm ith v. Sm ith, 55 Tenn. App. 136, 160-61, 397 S.W.2d 186,

197 (1965); Rogers v. Hickam, 30 T enn. A pp. 5 04, 5 12-1 3, 20 8 S.W .2d 3 4, 37 (1947). Prior to 19 93, T ennessee’s

statutes governing limited gu ardianships and conservatorships spec ifically identified “advanced age” as one o f the

conditions that could cause a person to become disabled or incompetent. Tenn. Code Ann. §§ 34-4-101(2), -203(a)

(Repealed 1992). The statutory references to “advanced a ge” were removed as part of the 1 992 revisions in th e

conservatorship statutes.

33

Parmelee, 2 L. & Pol’y Q. at 401; R obe rt Rub inson, Constructions of Client Competence and Theories of

Practice, 31 Ariz. St. L.J. 121, 133 (1999) (“Rubinson”).

34

Frank B. Hobbs, Bureau of the Census, U.S. Dep’t of Commerce, Pub. No. P23-190, Current Population

Reports, Special Stud ies, 65+ in the Un ited States 3 (1996 ), ava ilable a t http://www/census.gov/prod/1/pop/p23-

190 /p23 -190 .pdf (“6 5+ in the U nited S tates”).

35

Roca, 62 Fordham L. Rev. at 1181.

36

Fell, 25 U. Tol. L. Rev. at 192.

37

Rubinson, 31 Ariz. St. L.J. at 133.

-11-

Still, the realities of aging are frequently harsher than the common expectations about the

golden retirement years.38 Despite the advances in healthcare that enable Americans to live longer,

the percentage of persons with disabilities increases sharply with age. Persons 65 years of age and

over experience the greatest incidence of chronic conditions, as well as the greatest limitations on

their usual activities because of these conditions.39 These physical and non-physical disabilities take

a much heavier toll on the oldest old.40 More than one-half (54.5%) of persons 65 years of age and

older report having at least one disability, and more than one-third (37.7%) report having at least one

severe disability. In contrast, approximately three out of every four (73.6%) persons 80 years of age

and over report at least one disability, and more than one-half (57.6%) report one or more severe

disabilities.41

As a result of these disabilities, 14.2% of persons 65 years of age and over report having

difficulty carrying out activities of daily living “(“ADLs”);42 while 21.6% report difficulty with

instrumental activities of daily living (“IADLs”).43 A Profile of Older Americans: 2001, at 11.

Accordingly, the need of the non-institutionalized elderly for personal assistance with everyday

activities increases with age. Approximately one-half of the persons over 85 years of age require

personal assistance of some sort.44 In addition, disabilities require 4.5% of persons 65 years of age

or over to be placed in nursing homes. This percentage increases to 18.2% for persons 85 years of

age or over.45 The Tennessee General Assembly recognized this phenomenon when it enacted the

38

Andrews, 5 Elder L.J. at 77-78; Fell, 25 U. Tol. L. Rev. at 191.

39

Bruce K. Schefft & Beverly K . Lehr, Psych ologica l Problem s in Older Adults, in G ERONTOLOGY :

P E R SP E CT IV E AN D I SSUES 283 , 286 -87 (K enneth F. Ferraro ed., 1990 ).

40

Administration on Aging, U .S. Dep’t of Health and H uman Servs., A Profile on Older Americans: 2001 11,

ava ilable a t http://www.aoa.gov/aoa/stats/profile/2001/200 1profile.pdf (“A Profile of Older Americans: 2001" ).

41

A Pro file of Older A mericans: 20 01, at 11; B ureau of the C ensus, U .S. Dep’t of C omm erce, Population of

the United States: 2000 (Internet Release), at 19-1 (2002), at http://www.census.gov/population/pop-

profile/200 0/profile20 00.p df (“Population P rofile of the United S tates: 20 00" ).

42

ADLs include bathing, dressing, eating, toileting, getting around inside the house, and getting in or out of bed

or a chair. Population Profile of the United States: 2000, at 19-1.

43

IADLs involve eight com mon tasks, including going outside the ho use, keeping track of money and bills,

preparing meals, doing light housework, using the telephone, and taking prescription medicine in the right amount and

at the right time. Population Profile of the United S tates: 20 00, at 19-1; W illiam B . App legate et al., Instruments for the

Functional Assessme nt of O lder P atients, 322 New Eng. J. Med. 120 7, 1209 (19 89); David M . Bass & Linda S. No elker,

Family Caregiving: A Focus on Aging Research and Intervention, in G ERONTOLOGY : P E R SP E CT IV E S A N D I SSUES 243,

246 (K enneth F. Ferraro ed., 2d ed. 1997).

44

65+ in the United S tates, at 5; Bureau of the Census, U.S. Dep’t of Commerce, Pub. No . P23-194, Current

Population Reports, Special Studies, Population Profile of the United States: 1997 51 (199 8), available at

http://www .census.gov/p rod/3/98 pubs/p23 -194 .pdf.

45

A Pro file of Older America ns: 2001 , at 4; Lisa Hetzel & Anetta Smith, Bureau of the Census, U.S. Dep’t of

Commerce, Pub . No. C2K BR /01-1 0, Ce nsus 2000 Brief, The 65 Years and Over Population: 2000 7 (2001 ), ava ilable

at http://www.census.gov/prod/2001pubs/c2kbr01-10.pdf; Bureau of the Census, U.S. Dep’t of Commerce, Pub. No.

(continued...)

-12-

Public Guardianship for the Elderly Law by acknowledging “that many elderly persons in the state

are unable to meet essential requirements for their physical health or to manage essential aspects of

their financial resources.” Tenn. Code Ann. § 34-7-102(a) (2001).

D.

Capacity is not an abstract, all-or-nothing proposition.46 It involves a person’s actual ability

to engage in a particular activity.47 Accordingly, the concept of capacity is task-specific.48 A person

may be incapacitated with regard to one task or activity while retaining capacity in other areas

because the skills necessary in one situation may differ from those required in another.49 Godinez

v. Moran, 509 U.S. 389, 413, 113 S. Ct. 2680, 2694 (1993) (Blackmun, J., dissenting) (observing

that “[a] person who is ‘competent’ to play basketball is not thereby ‘competent’ to play the violin.”).

Capacity is also situational and contextual,50 and it may even have a motivational

component.51 It may be affected by many variables that constantly change over time.52 These

variables include external factors such as the time of day, place, social setting, and support from

relatives, friends, and supportive agencies.53 It may also be affected by neurologic, psychiatric, or

45

(...continued)

SB /95-8 , Statistical B rief, Sixty-Five P lus in the U nited States 3 (1995 ), ava ilable a t http://www.census.gov/apsd/

statbrief/sb95 _8.p df.

46

Andre ws, 5 Elde r L.J. at 101; M arshall B. K app & Dou glas Mossm an, Mea suring Decisional Capacity:

Cautions on th e Co nstruction of a “Capac imeter,” 2 Psychol. Pub. Pol’y & L. 73, 87 (199 6) (“Kapp & Mo ssman”);

W illis, at 91.

47

And rews, 5 Elde r L.J. at 1 00; S tephe n J. Anderer, A Mo del F or D eterm ining Comp etenc y in Gu ardiansh ip

Proceedings, 14 Me ntal & Physical Disab. L. Rep. 107, 108 (1990 ) (“Anderer”).

48

Kapp & M ossman, 2 P sycho l. Pub. P ol’y & L . at 83; C harles P . Sabatino, Rep resen ting A Client With

Diminished Capacity: How Do You Know It and What Do You D o Abou t It?, 16 J. Am. Acad. Matrim. L. 481, 485

(2000) (“Rep resenting A Client W ith Diminished Capacity”).

49

Andre ws, 5 Elder L.J. at 10 0-01; Anderer, 14 Mental & Physical Disab. L. Rep. at 108; David L. Shapiro,

Ethical Dilemmas for the Mental Health Professional: Issues Raised By Recent Supreme Court Decisions, 34 Cal. W.L.

Rev. 177, 179 (1997) (being comp etent for one purpose in no way implies competency for another).

50

Rubinson, 31 Ariz. St. L.J. at 126.

51

W illiam M. Altma n et al., Autonomy, Competence, and Informed Consent in Long Term Care: Legal and

Psychological Perspectives, 37 Vill. L. Rev. 1671, 1686 (19 92) (“Altman”).

52

Altman, 37 Vill. L. Rev. at 1681; Kapp & Mossman, 2 Psychol. Pub. Pol’y & L. at 83.

53

Andre ws, 5 Elder L.J. at 101; Anderer, 14 Mental & P hys. Disab. L. Rep. at 108; Edw in M. Bo yer,

Representing the Client With Marginal Capacity: Challenges for the Elder Law Attorney – A Resource Guide, 12 N at’l

Acad. Elde r Law Attys. Q. 3, at *1 (S pring 199 9) (“B oyer”); Gerald K . Goode nough, The Lack of Objectivity of

Physician Evaluations in Geriatric Guardianship Cases, 14 J. Contemp. L. 53, 55 (1988); Rubinson, 31 Ariz. St. L.J.

at 126; Representing a Client With Diminished Mental Capacity at 486.

-13-

other medical conditions, such as polypharmacy,54 many of which are reversible with proper

treatment.55 Finally, capacity is not necessarily static. It is fluid and can fluctuate from moment to

moment.56 A change in surroundings may affect capacity, and a person’s capacity may improve with

treatment, training, greater exposure to a particular type of situation, or simply the passage of time.57

In cases such as this one, capacity encompasses two concepts – functional capacity and

decision-making capacity. Functional capacity relates to a person’s ability to take care of oneself

and one’s property. Decision-making capacity relates to one’s ability to make and communicate

decisions with regard to caring for oneself and one’s property. The distinction between cognitive

capacity and competence in actual performance is somewhat artificial because functional capacity

depends, in part, on decision-making capacity.

Functional capacity to care for oneself involves a person’s ability to perform basic daily

activities. These activities, commonly referred to as ADLs and IADLs, include personal hygiene,

obtaining nourishment, mobility, and addressing routine healthcare needs.58 An inquiry into

functional capacity seeks to ascertain whether a person has functional impairment that endangers

physical health or safety by rendering the person unable, either wholly or partially, to care for him

or herself. Emphasis should be placed on a person’s ability to carry out essential activities in his or

her everyday environment, not in the laboratory, doctor’s office, or courtroom.59 The examination

should focus on behavior over time, not one or a few specific events whose prejudicial character may

lead to a premature conclusion.60

Functional capacity to care for property involves a person’s ability to manage personal

property, real property, and finances. Because a person’s ability to manage property depends on the

size, type, and complexity of the person’s holdings, the first step in the inquiry must be to identify

the property that the person owns or controls. The focus of an inquiry into a person’s functional

capacity to manage property is on whether a person’s functional inability to make or communicate

54

Polypharmacy is the medical term for the effect of excessive medication – either too many medications or too

much of any one me dicatio n. It is a condition frequently enco untered in elderly persons. J E FF R EY L. C UMM INGS & D.

F RANK B E N S ON , D EM EN TIA : A C LINICAL A P P RO A C H 249 (2d ed. 1992).

55

W arren F. Gorman, Testamen tary Capacity in A lzheimer’s D isease, 4 Elder L.J. 225, 228-29 (1996)

(“Gorman”).

56

And erer, 14 M ental & Phys. Disab. L. Rptr. at 108; Francis, 35 Ga. L. Rev. at 542; Gorman, 4 Elder L.J. at

228; Rubinson, 31 Ariz. St. L.J. at 126.

57

Andrews, 5 Elder L.J. at 101.

58

Anderer, 14 M ental & P hys. Disab. L. R ep. at 1 10; P enelo pe A . Hommel, Gu ardiansh ip Reform s in the 198 0s:

A Decade of Substance and Procedural Change, in O LDER A DULTS ’ D E C IS IO N -M AKING AND THE L A W 233 (Michael

Smyer et al. eds., 1996).

59

Willis, at 89-90.

60

John Parry, Selected Recommendations from the National Guardianship Symposium at Wingspread, 12 Mental

& Phys. Disab. L. Rep. 398, 40 4 (1988 ).

-14-

decisions regarding the acquisition, administration, or disposition of his or her property may lead to

the waste or dissipation of the property.

Decision-making capacity involves a person’s ability (1) to take in and understand

information, (2) to process the information in accordance with his or her own personal values and

goals, (3) to make a decision based on the information, and (4) to communicate the decision.61

Requiring that decisions be tested against a person’s own values and goals reflects the importance

of determining a person’s capacity in light of his or her own habitual standards of behavior and

values, rather than the standards and values of others.62 A person does not lack decision-making

capacity merely because he or she does things that others either do not understand or find

disagreeable. Foolish, unconventional, eccentric, or unusual choices do not, by themselves, signal

incapacity. 63 However, choices that are based on deranged or delusional reasoning or irrational

beliefs may signal decision-making incapacity. 64

An evaluation of decision-making capacity focuses chiefly on the process a person uses to

make a decision and only secondarily on the decision itself. It analyzes a person’s ability to under-

stand pertinent information and to reason and deliberate about choices particular to a specific

decision.65 Twenty-five years ago, we characterized this capacity as the “mental ability to make a

rational decision.” State Dep’t of Human Servs. v. Northern, 563 S.W.2d 197, 209 (Tenn. Ct. App.

1978). We used the adjective “rational” to connote a decision based on a process of reasoning, not

61

Anderer, 14 M ental & Phys. D isab. L. Rep . at 111 ; Jessica W . Berg et al., Constructing Competence:

Formulating Standards of Legal Competence to Make Medical Decisions, 48 Rutgers L. Rev. 345, 351 (199 6), citing,

Paul S. Ap plebaum & T hom as Grisso, Assessing Patients’ C apa city to Consent to Treatment, 319 New Eng. J. Med.

1635, 1635-36 (1988) (“Constructing Competence”) (identifying the four components of capacity as the ability to

com municate a choice, the ability to und erstand relevant inform ation, the ability to appreciate the nature of the situation

and its likely consequences, and the ability to manipulate information rationally); Uniform Probate Code § 5-102(4)

(amended 1998), 8 U.L.A. 61 (Supp. 2002) (defining an “incapacitated person” as “an individual who . . . is unable to

receive and evaluate information or m ake or co mmunicate decisions . . ..”); 1 President’s Commission for the Study of

Ethical Pro blem s in M edicine and Biomed ical and Behavioral Research, Making Health Care Decisions: The Ethical

and Lega l Implication s of Inform ed Co nsent in the Patient-P ractitioner Rela tionship 57 (1982) (stating that

“[d]ecisionmaking capacity requires, to a greater or lesser de gree: (1) po ssession of a set of values and goals; (2) the

ability to communicate and understand information; and (3) the ability to reason and to deliberate about one’s choices.”)

T H E H ASTINGS C ENT E R , G U ID ELINES ON THE T ERM INATION OF L IFE-S USTAINING T REATMENT AND THE C A S E O F TH E

D Y IN G 131 (Indiana U niv. Press 19 87).

62

M ICHAEL S IL BE R FE LD & A RTHUR F ISH , W H E N A M IN D F AILS : A G U ID E TO D E A LIN G WITH I NCOMPETENCY 47-

48 (1994); Representing a Client With Diminished Mental Capacity, 16 J. Am. Acad. Matrim. L. at 485.

63

In re Fisher, 552 N.Y .S.2d 807 , 815 (N.Y . Sup. Ct. 19 89); In re Appointment of Guardians for Baker, No.

14348, 1992 W.L. 884975, at *1 (Va. Cir. Ct. Oct. 20, 1992); 3 F OWLER V. H ARPER ET AL., T HE L AW OF T ORTS § 17.1,

at 562 (2d ed. 1986); Gorman, 4 Elder L.J. at 225; Roca, 62 Fordham L. Rev. at 1195.

64

Byron Chell, Competency: Wha t It Is, What It Isn’t, and W hy It Matters, in H E A LT H C ARE E THICS : C RITICAL

I S S U ES FO R T H E 21 ST C ENTURY 117-21. (John F. Monagle & David C. Thomama eds., 1998) (Comparing the choices

of two hypothetical patients who chose not to have a gangrenous leg amputated and differentiating between religious

beliefs and religious delusions).

65

Constructing Competence, 48 Rutgers L. Rev. at 353-54; D. William Malloy et al., Me asuring C apa city to

Complete an Advance Directive, 44 J. Am. Geriatric Soc’y 660, 662 (1996 ).

-15-

necessarily a decision that the prevailing majority would view as acceptable, sensible, or

reasonable.66

Persons frequently display different levels of decision-making ability. 67 A person may be

simultaneously capable and incapable with respect to different types of decisions.68 Courts routinely

apply different standards for determining capacity depending on the nature of the decision or action

involved.69 Accordingly, capacity should be determined on a decision-specific basis.70

E.

Dementia is a common condition that particularly affects elderly persons. Even though it is

not a normal part of the aging process, the risk of developing dementia increases with age.71 Surveys

have established that approximately 10% of persons 65 years old or over have mild dementia and

that 5% are severely demented. In comparison, nearly one-half of persons 85 years old or over have

some form of dementia, and in 15 to 25% of these persons, the dementia is severe.72 Because of its

66

See also Constructing Competence, 48 Rutgers L. Rev. at 358 n.49 (defining a rational decision as one that

flows logically from whatever reasons are offered); Francis, 35 Ga. L. Rev. at 543 (referring to “the ability to link chosen

alternatives to . . . values in a reasoned way”).

67

Kapp & Mossman, 2 Psychol. Pub. Pol’y & L. at 87.

68

And erer, 14 M ental & Phys. Disab. L. Rptr. at 111-13; David Checkland & Michael Silberfeld, Reflections

on Segregating and Assessing Areas of Competence, 16 Theoretical Med icine 375, 376 (199 5).

69

State v. Blackstock, 19 S.W .3d 2 00, 2 05 (Tenn. 20 00) (capacity to stan d trial); Childress v. Currie, 74 S.W.3d

324, 328 (Te nn. 20 02) (capacity to m ake a will); Cole v. Co le, 37 Tenn. (5 Sneed) 57, 59-6 0 (1857 ) (cap acity to marry);

Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 297 (Te nn. Ct. A pp. 2 001 ) (cap acity to ex ecute a durable

power of attorn ey); State v. Jackson, 52 S.W.3d 661, 667 (Tenn. Crim. App. 2001) (capacity to be a witness); Fell v.

Rambo, 36 S .W .3d 8 37, 8 46 (Tenn. Ct. A pp. 2 000 ) (cap acity to ex ecute a dee d).

70

Kapp & M ossman, 2 P sychol. Pub. Pol’y & L. at 83; M ark N ovak & S ean M . Novak, Clea r Tod ay, U ncertain

Tomorrow: Comp etenc y and Legal G uardian ship, a nd th e Ro le of the Lawyer in S erving the Needs of C ogn itively

Impaired Clients, 74 N . D. L. R ev. 295, 302 (1998) (“No vak & No vak”); Tim othy A. Salthouse, Com mentary: A

Cognitive Psychologist’s Perspective on the Assessment of Cognitive Competency, in O LDER A DULTS ’ D E C IS IO N -M A K IN G

A N D THE L A W 37 (Michael Smyer et al. eds., 1996) (“Salthouse”) (stating that situational-specific evaluations of actual

decision-making are much more appropriate than global assessments of overall mental status).

71

Nat’l Inst. on A ging & Nat’l Insts. of Health, Pub. N o. 00 -485 9, Progress Report on Alzheimer’s Disease:

Taking the Next Steps 2, 10, available at http://www .alzheim ers.org/pub s/pr2000 .pdf (“P rogre ss Rep ort on Alzhe imer’s

Disease: 200 0”); K atalin G . Loso nczy et al., Prevalence and Correlates For Dementia: Survey of the La st Da ys of Life,

113 P ub. Health Rep. 273 (U .S. Dep’t of Health & Human Servs. 199 8) (“Losonczy”).

72

Marshall B. Kapp, Leg al Sta nda rds for the M edica l Diagno sis and Trea tment of D ementia, 23 J. Legal Med.

359, 366 (2002); Roc a, 62 Ford ham L. Rev. at 11 81; R obe rt D. T erry & Robert K atzman, Alzheimer’s Disease and

Cognitive Loss, in P RINCIPLES OF G ERIATRIC N E U R O LO G Y 207, 208 (Robert Katzman & John W . Rose eds., 1992); U.S.

Congress, Office of Technology Assessment, Pub . No. OT A-B A-32 3, Losing A Million Minds: Confronting the Tragedy

of Alzheim er’s Disease and Other D ementias 7 (April 19 87), ava ilable a t http://www.wws.princeton.edu/cgi-bin/

byteserv.prl/~ota/disk2/1987/8715/871503.PDF (“Losing A Million Minds”); Progress Report on Alzheimer’s Disease:

2000, at 3.

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prevalence, its effects on persons, and the expense of its treatment, dementia is now considered to

be an urgent public health priority. 73

Dementia is a syndrome,74 rather than an illness, that may accompany over seventy diseases

or physical conditions.75 According to current diagnostic criteria, the essential feature of dementia

is the development of multiple cognitive deficits that are severe enough to cause impairment in

occupational and social functioning.76 These deficits include memory impairment,77 which is a

prominent early symptom, and at least one of the following: (1) deterioration of language function

(aphasia), (2) impaired ability to execute motor activities despite intact motor abilities, sensory

function, and comprehension of the required task (apraxia), (3) inability to recognize objects despite

intact sensory function (agnosia), or (4) disturbances in executive functioning.78 The specific

cognitive functions that are lost or impaired and those that remain vary from time to time and from

person to person.79 Dementia does not, however, cause a change in a person’s normal level of

consciousness.80

Dementia has historically been viewed as progressive and irreversible. The current view,

however, is that dementia may be progressive, static, or remitting.81 Its classification and prognosis

depends on its cause. Because most dementing conditions are irreversible, most persons with

dementia do not recover their lost cognitive abilities. There are important exceptions. Persons with

73

D A V ID S H E N K , T H E F ORGETTING – A LZHEIMER ’S : P ORTRAIT OF AN E PIDEMIC 163 (2001); Losing A Million

Minds, at 3; Ag ency for Healthcare Research and Qua lity, Medical Expenditure Panel Survey, Pub. No. MEPS HC-037,

1999 Medical Conditions, App endix 4 (2002 ), ava ilable a t http://www.meps.ahrq.gov/pubdoc/hc037/h37doc.htm.

74

A clinical syndrome is a group or cluster of symptoms, signs, or impairments that tend to occur together and

have a distinct natural history. Roca, 62 Fordham L. Rev. at 1177.

75

Boyer, 12 Nat’l Acad. Elder L. Attys. at *3; Peter J. Rabins, Dementia and Alzheimer’s Disease: An Overview,

35 Ga. L. Rev. 451, 452 (2001) (“Rabins”); Losing A Million Minds, at 9.

76

M ERCK R E S EA R C H L ABS ., M ERCK M ANU AL OF G ERIATRICS 357 (M ark H. Beers & R obert Berklow eds., 3d

ed., 2000); Kapp, 23 J. Legal Med. at 365.

77

The memory impairment may affect short-term and long-term memory. Persons with dementia become

impaired in their ability to learn new m aterial, or they forget previously learned material. Most persons with dementia

have both forms of memory impairment.

78

Executive functioning involves the ability to think abstractly and to plan, initiate, sequence, monitor, and stop

complex behavior. It involves a person’s ability to develop and carry out plans, to form analogies, to obey social rules,

to solve p roblems, to adap t to unex pected circ umstances, to do several tasks simu ltaneously, and to plac e episo des in

time and place. A M E R IC A N P SYCHIATRIC A SS ’N , D IA G N O ST IC A N D S TAT ISTICAL M ANU AL OF M ENTAL D ISORDERS 135

(4th ed. text rev. 2000) (“DS M-IV -TR”); Jordan G rafman & Irene Litvan, Importance of Deficits in Executive Functions,

354 Lancet 19 21, 1921 (1999).

79

Losing A Million Minds, at 61-62

80

Rabins, 35 Ga. L. Rev. at 452.

81

DSM-IV-TR at 157.

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dementia brought on by depression, drug toxicity, polypharmacy, or treatable medical conditions

may recover completely.82

In slowly progressive dementias, incapacity develops gradually and unpredictably.83 The

progress of impairment depends not only on the specific types of impairment but also on the specific

decisions or tasks the person is facing.84 Persons with chronic dementing illnesses gradually lose the

ability to perform the tasks normal daily living requires.85

Alzheimer’s Disease is the single most common cause of dementia, accounting for between

60 and 70% of the cases.86 Current estimates are that 10% of persons 65 years old and older and over

one-half of persons over 85 years old have Alzheimer’s Disease or some other form of dementia87

and that the prevalence of the disease doubles every five years beyond the age of 65. Approximately

360,000 new cases of Alzheimer’s Disease occur each year, and this number will increase as the

population ages.88

Alzheimer’s Disease is a chronic, slowly progressive disorder that is irreversible.89 It varies

widely in its course and in the rate of its progression.90 While the cause of Alzheimer’s Disease

remains unknown,91 it is defined by impaired cognitive capacities that cause significant impairment

in social or occupational functioning and that represent a significant decline from a person’s normal

82

Roca, 62 Fordham L. Rev. at 1181.

83

Rabins, 35 Ga. L. Rev. at 458. De mentia’s progression has been comp ared to the tide going out. One

commentator notes that “[t]here may be significant ebb and flow with a person having ‘good’ and ‘bad’ days.” Dessin,

36 Idaho L. R ev. at 218.

84

Francis, 35 Ga. L. Rev. at 546 (observing that impairments are not predicably uniform among p atients).

85

Losing A Million Minds, at 70.

86

Gorman, 4 Elder L.J. at 226; Kapp, 23 J. Legal Med. at 366; Roca, 62 Fordham L. Rev. at 1181; Losing A

Million Minds, at 62.

87

DSM-IV-TR, at 14 1; James L. M cGaugh, Enhancing Cogn itive Performance, 65 S. Cal. L. Rev. 383, 393

(1991); Novak & Novak, 74 N . D. L. Rev. at 295-96; Mark A. Ro thstein, Pred ictive G enetic Testing for Alzheimer’s

Disease in Long-Term Care Insurance, 35 G a. L. Rev. 70 7, 71 0-11 (2001).

88

Progress Report on Alzheimer’s Disease: 2000, at 2-3.

89

DSM-IV-TR, at 139, 142; Losing A Million Minds, at 62.

90

Rabins, 35 Ga. L. Rev. at 454.

91

Rabins, 35 Ga. L. Rev. at 454; Roca, 62 Fordham L. Rev. at 11 81; P aul S. A ppe lbaum , Decisionally Impaired

Research Su bjects, in Research Involving Persons with Mental Diso rders That M ay Affect Dec isionmaking C apacity,

Vo l. II, at 1 (N at’l Bioethics Advisory Comm’n 1999), ava ilable a t http://govinfo.library.unt.edu/nbac/cap acity/

volum eii.pdf.

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level of functioning.92 The current diagnostic criteria for Alzheimer’s Disease, like that for dementia,

requires memory impairment and one or more of the following cognitive disturbances: (1) language

disturbance (aphasia), (2) impaired ability to carry out motor activities despite intact motor function

(apraxia), (3) inability to recognize or identify objects despite intact sensory function (agnosia), and

(4) disturbance in executive functioning. However, a diagnosis of Alzheimer’s Disease requires

ruling out (1) cognitive deficits caused by other central nervous system conditions known to cause

deficits in memory and cognition, (2) deficits caused by systemic conditions that are known to cause

dementia, (3) substance-induced conditions, (4) cognitive deficits occurring during the course of a

delirium, and (5) deficits that are better accounted for by another Axis I disorder (e.g., major

depressive disorder or schizophrenia).93

The course of the illness can be broken into stages. During the first stage, memory

impairment is the most prominent symptom. During the second stage, the symptoms that may

emerge include impairments in language, performing everyday learned activities, recognizing the

familiar, and perceiving the world as it is. In addition, impairments in executive functions with

regard to personal hygiene, dressing, social etiquette, and self-control in the presence of strong

feelings such as anger, frustration, or fear become prominent. During the third stage, the physical

impairments associated with Alzheimer’s disease become apparent. Many persons become

incontinent or mute and lose the ability to walk unaided.94

In addition to the cognitive deficits associated with Alzheimer’s Disease, many persons with

the illness manifest non-cognitive symptoms. These symptoms include angry outbursts, depression,

violence, inappropriate sexual behavior, hallucinations, apathy, stubbornness, resistence to care,

suspicion and accusation, incessant repeating of the same question, physical self-abuse,

reclusiveness, and the use of obscene or abusive language.95 A majority of these behaviors are

common to residents of nursing homes who have been diagnosed with dementia.96

In the early stages of Alzheimer’s Disease, persons may be capable of living independently

and of tending to their individual needs. However, persons become manifestly incapacitated in the

later stages of the disease. The impairments that develop during the second stage can interfere with

the ability to comprehend options, to remember facts, to make judgments, and to communicate

choices. Most persons in the third stage lack the capacity to make decisions of any import.97

92

DSM-IV-TR, at 142; Rabins, 35 Ga. L. Rev. at 456.

93

DSM-IV-TR, at 142-43.

94

Bruce Jennings, Freedo m F adin g: O n D ementia, Best In terests, and P ublic Safety, 35 Ga. L. Rev. 593, 595

(2001); Rabins, 35 Ga. L. Rev. at 455-56 ; Losing A M illion M inds, at 6 2-67 ; Progress R epo rt on A lzheimer’s

Disease:2000, at 6.

95

Rabins, 35 Ga. L. Rev. at 456-58; Losing A Million Minds, at 72-77.

96

Cynthia Steele et al., Psych iatric Symptom s and N ursing H ome Placemen t of Patients with A lzheimer’s

Disease , 147 Am. J. Psychiatry 10 49, 1 049 (1990).

97

Gorman, 4 Elder L.J. at 234-35; Rabins, 35 Ga. L. Rev. at 455-56, 458.

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The ability of qualified clinicians to diagnose the different types of dementia has improved

markedly during the past two decades. This improvement can be traced to (1) the publication of

reliable standardized diagnostic criteria,98 (2) the development of diagnostically useful laboratory

tests, (3) the refinement of mental status tests,99 and (4) the ability to identify specific genotypes to

confirm a clinical impression.100 The current best practice guidelines for diagnosing dementia

envision that the examination will include (1) taking a patient’s history,101 (2) conducting a physical

examination, and (3) assessing the extent of the patient’s functional, as well as cognitive,

impairment.102 A diagnosis of Alzheimer’s Disease requires that the manifestations of dementia be

apparent for at lease six months.103 Clinicians can now diagnose Alzheimer’s Disease with 80%

accuracy based on a medical history and physical examination. Diagnostic accuracy above 90% can

be achieved when the medical history and physical examination are augmented with psychological

evaluations, laboratory tests, and radiologic examinations.104

F.

By the time of trial, six clinicians had examined Ms. Groves to assess her mental status.

These clinicians include her personal physician and two other physicians, one psychiatrist, and two

clinical psychologists. Collectively, their examinations of Ms. Groves spanned a period beginning

in February 1998 and ending in December 1999. Considered together, these clinicians’ reports paint

a picture of an elderly woman whose functional capacity is significantly compromised and whose

decision-making capacity is significantly impaired and progressively deteriorating.

98

In addition to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorde rs,

the National Institute of Neurological and Communicative Disorders and Stroke, the National Institute on Aging, and

the Alzheimer’s Disease and Related Diseases Association have published general criteria for diagnosing dementing

conditions. Losing A Million Minds, at 39.

99

The Mini-M ental State Exam ination (“MMSE”) is currently the instrument most com monly used to assess

cognitive com peten cy in adults. Roca, 62 Fordham L. Rev. at 1182; Salthouse, at 36; Alistair Burns & M ichael Zaudig,

Mild Cognitive Imp airm ent in Older Pe ople, 360 Lancet 1963 (20 02); Tom N. To mbaugh & N ancy J. McIntyre, The

Mini-Mental State Examination: A Comp rehensive Review, 40 J. Am. Geriatrics Soc’y 922, 922 (1992) (“T ombaugh”);

see also http://www .minimental.co m; M arshall F. Folstein et al., Mini-Mental State: A Practical Method for Grading

the Cognitive State of Patients for the Clinician, 12 J. Psychiatric Res. 189 (199 3). Other instruments to assess cognitive

capacity are also available. Boyer, 12 Nat’l Acad. Elder Law Atty’s Q. at *6-7; Kapp, 23 J. Legal Med. at 370, n.73;

Kapp & M ossman, 2 P sychol. Pub. Pol’y & L . at 80-8 1; Representing Clients With Diminished Capacity, 16 J. Am.

Acad. M atrim. L. at 494 .

100

Kapp, 23 J. Legal Med. at 369-70; Progress Report on Alzheimer’s Disease: 2000, at 5, 29, 31.

101

The patient history sho uld include information regarding the onset of the manifestation of the symptoms of

dementia, the rate of decline in cognitive functioning, and the specific kinds of impairments that the person has

developed. Roca, 62 Fordham L. Rev. at 1178.

102

Kapp, 23 J. Legal Med. at 370 , 372 ; Roc a, 62 Ford ham L. Rev. at 11 81-8 2; Progre ss Rep ort on Alzhe imer’s

Disease: 2000, at 11-12.

103

Losonczy, 113 Pub. Health Rep. at 273.

104

Losing A Million Minds, at 14.

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In February 1998, Mr. Groves and his wife decided to move Ellen Groves into a nursing

home because they believed they were no longer able to care for her in their home. They consulted

Dr. David Gullett, a Clarksville internist who provided medical care for the residents of the

Cumberland Manor Nursing Home without a physician of their own. Based on the information

provided by Mr. Groves and his wife, and after taking a history and examining Ms. Groves, Dr.

Gullett diagnosed her as demented with paranoid features and concurred that she should be placed

in a nursing home.

Shortly after examining Ms. Groves, Dr. Gullett prepared a physician’s report to accompany

Mr. Groves’s conservatorship petition. He rated Ms. Groves’s mental condition, adaptive behavior,

and social skills as “poor” and recommended that Ms. Groves should be placed under “full and

complete guardianship” for her physical well-being, financial affairs, and medical care decisions.

In an accompanying progress note, Dr. Gullett observed that Ms. Groves was “mentally unable to

handle her affairs.”105

In addition to Dr. Gullett’s report, Mr. Groves obtained a medical report from Dr. Robert W.

Hudson, a physician practicing in Adams. Following a personal physical and mental examination

of Ms. Groves, Dr. Hudson diagnosed her with dementia of the Alzheimer’s type and assessed her

mental condition as “poor.” He also concluded that Ms. Groves’s physical condition and mental

status warranted the appointment of a limited guardian for her physical well-being, financial affairs,

and medical treatment decisions.

Dr. Tony Franklin, a clinical psychologist in Clarksville who provided psychological services

to residents of the Clarksville Manor Nursing Home, began treating Ms. Groves in March 1998 at

the request of the nursing director of the nursing home.106 After performing a mental status

examination, Dr. Franklin determined that Ms. Groves had dementia of the Alzheimer’s type with

paranoid features. He classified Ms. Groves’s dementia as “severe” and concluded that she was

incapable of living by herself or of making “any rational decisions regarding anything in the span

of her control,” including her personal and financial affairs.

Dr. Daniel Drinnen, a family practitioner in Dickson, began treating Ms. Groves in 1996.

He was asked to assess her mental state in April 1999. Following an examination that included an

105

The trial court disco unted Dr. G ullett’s diagnosis b ecause it was “no t factually based.” Apparently, the trial

court’s conclusion rests on its belief that Dr. Gullett’s opinion was based solely on information provided by Mr. Groves

and his wife. However, D r. Gullett stated in his dep osition that he person ally exam ined M s. Gro ves in February 1998

and that he continued to provide her with medica l care while she rema ined in the nursing home. According to Dr.

Gullett, he saw Ms. Groves at least every other month. Accord ingly, it is plain that Dr. G ullett’s opinion rests on his

personal knowledge of Ms. Groves, not just the information provid ed by Mr. Gro ves and his wife. This is not a

circumstance that requires us to defer to the trial court’s determination of Dr. Gullett’s credib ility. His testimo ny is in

deposition form. We are equally capable of reading depositions and drawing conclusions therefrom.

106

The trial court characterized Dr. Frank lin as a “company doctor” and d iscounted his testimony because he

was emp loyed by the comp any that o wned the Clarksville M anor Nursing H ome . The trial court’s conclusion about the

relationship betwe en D r. Franklin’s employer and the nursing home is incorrect. Dr. Franklin is employed by Foundation

Life Care Services which is a part of Superior Life Care Services. Superior Life Care Services contracts with nursing

homes to provide psychological services to their residents. It does not ow n any nursing hom es itself. Thus, the record

does not support the conclusion that Dr. Franklin is an employee of the owner of the Clarksville Manor Nursing Home

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MMSE, Dr. Drinnen concluded that Ms. Groves was not “insane” but that she had “moderate

dementia” based, in part, on her MMSE score of 12.107 He also concluded that Ms. Groves was

“unable to manage her own affairs regarding finances and this type of thing.” However, noting that

Ms. Groves did not want to stay in the nursing home, he also concluded that she was “competent to

decide where she wants to stay.” Several months later, he determined that Ms. Groves was “of sound

enough mind that she can prepare her own will and understand what is in her will.”

In July 1999, Dr. Robert Berberich, a clinical psychologist in Clarksville, performed a mental

status examination on Ms. Groves at Ms. Travis’s request. Based on three interviews with Ms.

Groves, Dr. Berberich found that Ms. Groves has “at least mild to moderate cognitive impairment”

and that she “may not understand the complete extent of her current condition.” Dr. Berberich

concluded that Ms. Groves remained able to express her preferences and to state whether she liked

or disliked things but cautioned that “it would not be all together feasible to look to Ms. Groves’

word as being the sum and all of any decision that needs to be made with respect to how her life or

affairs are going to be managed from here on out . . ..” He also found that independent living was

no longer an alternative and that Ms. Groves lacked the capacity to make judgments “with respect

to complex decisions.”

Dr. Kimberly Stalford, a psychiatrist practicing in Clarksville, also evaluated Ms. Groves in

July 1999. Her examination included administering an MMSE on which Ms. Groves scored 15. Dr.

Stalford determined that Ms. Groves had severe dementia108 and her tentative diagnosis was

dementia of the Alzheimer’s variety with psychotic features.109 In addition to concluding that Ms.

Groves lacked the capacity to make decisions about her own well-being, financial affairs, and

107

The MM SE is currently the most widely used screening test to identify minimum levels of cognitive

functioning. It is quite useful for examining persons with dementia, especially when it is adjusted to compensate for age

and educ ational level. Ronald C. Petersen et al., Practice Parameter: Early Detection of Dementia: Mild Cognitive

Impairment (An Evidence Based Review), 56 Neurology 1133 (20 01); Rosa M . Crum et al., Population-Based Norms

for the Mini-Mental State Examination by Age and Edu cational Level, 269 J. Am. M ed. Ass’n 2386 (199 3). The norm

MM SE score for persons between 80 and 84 years of age with a fourth grade education is 20; while the norm for persons

of the same age who completed high school is 25.

Persons whose MM SE score is 24 or above are rarely found to have inadequate cognitive function for decision-

making purposes. Roca, 62 Fo rdham L. Rev. at 1182. How ever, scores of 23 or less are generally accepted as indicating

the prese nce o f cognitive impairment. Tombaugh, 40 J. Am. Geriatrics Soc’y at 922. W hile the MMS E should not serve

as the sole criteria for diagnosing dementia, the current trend is to classify the severity of cognitive impairment based

on MM SE scores into three levels: Scores of 24 to 30 indicate no cognitive impairment; scores of 18 -23 ind icate mild

cognitive impairment; and scores of 0-17 indicate severe cognitive impairment. To mba ugh, 40 J. Am. Geriatrics S oc’y

at 922 . Perso ns with an MMSE score below 24 may be incap able o f making rational decisions; ho wever, perso ns with

MM SE scores below 18 are prob ably incapab le of making informed and rational decisions or even to take care of

themselves. Salthouse, O LDER A DULTS D E C IS IO N -M AKING AND THE L AW , at 36.

108

Dr. Stalford explained that severe cognitive impairment accompanied MM SE scores below 20.

109

The only thing tentative about Dr. Stalford’s diagnosis was her conclusion that Ms. Groves’s dementia was

caused by Alzheime r’s Disease. She reserved making a definitive diagnosis pending an organic workup to rule out the

possible reversible causes of Ms. Groves’s dementia. She also concluded that Ms. Groves’s mental state was not affected

by the medications she was taking.

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medical treatment, Dr. Stalford contacted Dr. Gullett to strongly recommend that he prescribe

Zyprexa, an anti-psychotic used to treat paranoia and hostility.110

Five of the six clinicians who had evaluated Ms. Groves testified in this case. Only Dr.

Hudson did not provide testimony explaining his March 1998 certification regarding Ms. Groves’s

mental status. While Dr. Berberich is the only clinician who actually testified, the trial court

received and considered the depositions of Drs. Drinnen, Franklin, Gullett, and Stalford that had

been taken between mid-October and mid-December 1999.

The conclusions of these clinicians in late 1999 are remarkably consistent. Dr. Gullett, who

continued to treat Ms. Groves in the nursing home, believed that she was incapable of handling her

day-to-day affairs and that she needed a conservator. Dr. Franklin, who likewise continued to treat

Ms. Groves in the nursing home, believed that she had never been “competent” and that “[h]er ability

to care for herself and perform simple acts of daily living has been grossly impaired for some time

now and the prognosis for her ever being able to make rational decisions again is negligible. This

elderly lady and her condition has continued to decline to the point that she is and will continue to

be unable to care for herself.” Dr. Drinnen, who last saw Ms. Groves in September 1999, found that

she had “deteriorated . . . both physically and mentally.”111 He observed that “[a]t this time, I do not

feel that she is able to manage her own affairs and is unable to make a decision regarding where she

would stay, and I also do not feel she is competent to understand what her will would say.” Dr.

Stalford likewise found that Ms. Groves was “incompetent to make any financial decisions on her

own due to her diagnosis of Dementia with Psychotic Features. She is unable to recall the date, can

not remember conversations, and can not utilize her short-term memory to make any decisions on

her behalf.” Even Dr. Berberich, who visited Ms. Groves the day before the trial, testified that Ms.

Groves had deteriorated since July 1999. He agreed that Ms. Groves had dementia and that “[s]he

knew that she couldn’t handle her life.” While Dr. Berberich believed that Ms. Groves remained

able to express her preferences, he determined that she was unable to make complex decisions.

The medical and psychological testimony, coupled with the lay testimony, paints a clear and

compelling picture. Ellen Groves’s functional and decision-making capacities are significantly

impaired and probably have been since her fall in September 1997. The medical and psychological

testimony indicates that her mental state is on a deteriorating course with no reasonable prospect for

improvement.112 For the purpose of Tenn. Code Ann. § 34-1-101(7), the record contains clear and

110

The trial court discounted Dr. Stalford’s testimony because it believed that her examination had been

undermined by the nursing home’s failure to inform her that Ms. Groves was taking Biaxin, an antibiotic, for the lesions

on her leg. However, the record contains no indication that Biaxin was not on the list of medications provided to Dr.

Stalford. There is likewise no evidence that Biaxin causes dementia or that taking it skews the results of an MMSE.

111

Dr. Drinnen refrained from administering another MMSE to M s. Gro ves during his S eptem ber 1 999 visit

because she was unable to answer q uestions meaningfully.

112

Following the trial, the trial court permitted Ms. Travis to remove Ms. Groves from the nursing home and

to bring her to Ms. Travis’s home. After seeing Ms. Groves after she left the nursing home, Dr. Berberich prepared a

brief letter stating that Ms. Groves “appears on a psychological basis to be vastly improved” based on her “affect,” mood,

and extent of her confusion. However, Dr. Berberich did not addre ss the nature or extent of the impairment to Ms.

Groves’s functional and decision-making ca pacities.

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convincing evidence that Ms. Groves is a disabled person who is in need of a conservator’s

supervision, protection, and assistance. Thus, the trial court erred by declining to appoint a

conservator for Ms. Groves.

Accordingly, the portion of the February 29, 2000 order denying the competing petitions to

appoint a conservator for Ms. Groves is vacated, and the case is remanded for further proceedings

consistent with this opinion and Tenn. Code Ann. §§ 34-1-301 et seq. and 34-7-101 et seq. The

court, in its discretion, may hear whatever additional evidence it deems appropriate regarding (1) the

nature and extent of Ms. Groves’s current functional and decision-making capacity, (2) the type of

supervision, protection, or assistance Ms. Groves requires, and (3) the qualifications and abilities of

the person or persons seeking to be appointed Ms. Groves’s conservator to provide the supportive

services she requires.113 Thereafter, the trial court shall enter a judgment consistent with Tenn. Code

Ann. § 34-3-107 naming a conservator or conservators for Ms. Groves and defining their duties.

III.

THE PURPORTED GIFTS OF REAL AND PERSONAL PROPERTY

Mr. Groves and his wife take issue with the portions of the trial court’s order divesting them

of the real property, cash, and other items of personal property once owned by Ms. Groves and her

late husband. First, they assert that the trial court should not have adjudicated the status of this

property after it determined that Ms. Groves was “competent.” Second, they assert that the evidence

supports their claims that the real property, cash, and other items of personal property were valid

inter vivos gifts from Ms. Groves and her late husband. We have concluded that Mr. Groves and

his wife cannot now take issue with the trial court’s decision to address the property issues because

they failed to object at trial. We have also concluded that the record contains sufficient evidence to

support an order divesting Mr. Groves and his wife of the real property, cash, and other personal

property once owned by Ms. Groves and her late husband.114

113

The current record already provides a sufficient factual basis for declining to appoint Glendon Groves or

W ilmuth Gro ves as M s. Grove s’s conservator. It also raises sub stantial qu estions regard ing M s. Tra vis’s suitability.

Should M s. Travis desire to be appo inted Ms. Groves’s conservator, she will have the burden of demon strating to the

trial court (1) that her home has satisfactory accommodations for persons in Ms. Groves’s physical and psychological

condition, (2) that she can provide or arrange to pro vide the supportive care M s. Gro ves req uires, and (3) that she is able

to mana ge M s. Gro ves’s pe rsona l and re al pro perty in a com peten t manner. Should the trial court determine that none

of Ms. Gro ves’s fam ily members are able to provide M s. Groves the supervision, protection, and assistance she requires,

the court may consider appointing a public guardian pursuant to Tenn. Code Ann. § 34-7-101 et seq. or another third-

party to serve as Ms. Gro ves’s conservator.

114

Mr. Grov es’s briefs address only the purported gifts of real property and money. They do not address the

trial court’s decisio ns regarding Ms. Gro ves’s furniture and other items of personal property or Mr. Groves’s request for

$18,000 to repay the allegedly outstanding balance of a $40,000 loan he made to R.C. Gro ves in 196 4. Accord ingly,

we conclude that M r. Gro ves and his wife have abandoned their appeal with regard to the portions of the final order

directing them to return Ms. Groves’s furniture and other items of personal property that may still be in their possession

and denying their request for $18,000.

-24-

A.

This case began as an unremarkable conservatorship proceeding. Mr. Groves requested the

trial court to appoint him conservator for his sister-in-law because she was no longer “capable of

taking care of herself or her business affairs.”115 In the absence of evidence to the contrary, we

presume that the petition was served upon Ms. Groves and that the trial court clerk notified her

closest relatives as required by Tenn. Code Ann. § 34-1-106.

As required by Tenn. Code Ann. § 34-1-107(a), (b), the trial court appointed Timothy Barnes,

a Clarksville lawyer, to be Ms. Groves’s guardian ad litem. In the absence of evidence to the

contrary, we presume that Mr. Barnes complied with his statutory obligation to meet with Ms.

Groves for the purpose of explaining the nature of the proceedings and to advise her of her rights,

including the right to contest the petition.116 Tenn. Code Ann. § 34-1-107(d)(2)(C). Ms. Groves did

not immediately contest her brother-in-law’s petition.

Approximately one month after Mr. Groves filed his conservatorship petition, two of Ms.

Groves’s nieces, Mses. Travis and Proctor, filed a response to this petition and a counter-petition

requesting the trial court to appoint them as their aunt’s co-conservators.117 Like Mr. Groves, Mses.

Travis and Proctor alleged that Ms. Groves was “suffering from dementia complicated by a recent

fall . . . her current judgment and insight are and have been impaired for several years, she is not now

capable of taking care of herself or her business affairs, and that she is basically not competent.”

They also alleged that Mr. Groves could not be a fit conservator for Ms. Groves because he and his

wife had “taken advantage of . . .[Ms. Groves] in her aged and weakened condition” and had

“diverted” assets from her.

Competing conservatorship petitions, while infrequent, are entirely consistent with the

conservatorship statutes. It should be expected that intra-family disagreements can arise regarding

who should act as the conservator for an impaired family member. However, the petition filed by

Mses. Travis and Proctor introduced a new issue into the proceeding. In addition to requesting to

be appointed co-conservators for their aunt, Mses. Travis and Proctor requested the trial court to

order Mr. Groves to account for Ms. Groves’s real and personal property and to order Mr. Groves

115

Mr. Gro ves clearly had standing to file this petition because he was a p erson with kno wledge of M s. Gro ves’s

circumstances as required by Tenn. Code Ann. § 34-3-102.

116

A guardian ad litem’s role and responsibilities are statutorily prescribed in some detail. Tenn. Code A nn. §

34-1-107(c), (d), (f). Trial courts should be extremely hesitant to use the ir prerogative under Tenn. Code Ann. § 34-1-

121(a) to excuse guardians ad litem from any of their statutory responsibilities. While Mr. Barnes’s performance as Ms.

Gro ves’s guard ian ad litem is not directly at issue in this case, we note with some concern that the record does not reflect

the steps Mr. Barnes took (1) to determine whether M r. Groves or Ms. Travis would be appropriate conservators as

required by Tenn. Code Ann. § 34-1-107(d)(2)(D), (2) to investigate Ms. Groves’s physical and mental capabilities as

required by T enn. C ode Ann. § 34-1-107(d)(3), or (3) to investigate Ms. Gro ves’s finances, as well as Mr. Groves’s and

Ms. Travis’s abilities to manage them as required by Tenn. Cod e Ann. § 34-1-107(d)(4 ). In addition, the record contains

only an abbreviated written report prepared early in the proceeding that does not address many of the issues that Tenn.

Code Ann. § 34-1-107(f) requires to be addressed.

117

Like Mr. Groves, Mses. Travis and Proctor had standing to file their petition because they too had knowledge

of Ms. Groves’s circumstances as required by Tenn. Code Ann. § 34-3-102.

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and his wife to return all the property that Ms. Groves and her late husband had turned over to them

since 1995. These sorts of issues are not normally part of a conservatorship proceeding. 118

Neither Ms. Groves nor her guardian ad litem responded to Mses. Travis’s and Proctor’s

conservatorship petition. They neither ratified nor rejected it. Mr. Barnes never requested the trial

court to appoint Ms. Groves an attorney ad litem pursuant to Tenn. Code Ann. § 34-1-125 to seek

to set aside the gifts or to challenge the claims that she was so incapacitated that she required a

conservator. For his part, Mr. Groves responded to the petition by denying that he and his wife had

taken “unfair advantage” of Ms. Groves or that he and his wife should be required to return the real

property, cash, and personal property they had received from Ms. Groves and her late husband. He

also filed a counterclaim against Mses. Travis and Proctor seeking damages for abuse of process,

defamation, and infliction of emotional distress.119

Approximately two weeks after Mses. Travis and Proctor filed their petition, Mr. Barnes filed

a “report and answer.” He reported that Ms. Groves “[s]uffered from dementia and other mental,

psychological and physical problems” and recommended that a “conservator should be appointed

as soon as practicable.” He did not address (1) the nature or extent of Ms. Groves’s property and

finances, (2) the validity of the alleged gifts to Mr. Groves and his wife, or (3) the relative suitability

of Mr. Groves, Ms. Travis, or Ms. Proctor to be Ms. Groves’s conservator.

In December 1998, the lawyer who had been representing Mses. Travis and Proctor withdrew

and was replaced by Thomas R. Meeks. The proceedings took another curious turn approximately

six months later when Mr. Meeks, purporting to act as Ms. Groves’s lawyer, filed a motion solely

on Ms. Groves’s behalf seeking the court’s permission to move out of the Clarksville Manor Nursing

Home. Addressing only Mr. Groves’s petition, Ms. Groves asserted that she was “of sound mind,”

that she was suffering anxiety and stress by being forced to live in the nursing home, and that “she

. . . [was] being kept in the nursing home by certain individuals who seek to gain undue advantage

from the [m]ovant. Said individuals continue will [sic] to control her financial affairs so that they

may receive same upon her death.” Ms. Groves also asserted that she “would like to distance herself

from the nursing home and initiate action to recover all property, including money from banks, that

have [sic] wrongfully taken [sic] from her.” In August 1999, Mr. Meeks filed another motion for

Ms. Groves reiterating that “she [did] . . . not suffer from a mental illness that would incapacitate her

to justify the appointment of a conservatorship [sic]” and that “there is no basis in law and fact that

would justify and support a continuation of the conservatorship.”120

118

A conservatorship proceeding, like a will contest, involves a single issue, the outcome of which may affect

related proceedings in other courts. Because of the potentially far-reaching impact of the proceeding on a person’s status,

the better practice is to avoid using a conservatorship proceeding to litigate issues other than a person’s ca pacity to

manage his or her own personal and financial affairs. If a person is found to be sufficiently incapacitated to require a

conservator, the trial court may empower the conservator to take steps to preserve the incapacitated person’s real and

perso nal pro perty.

119

These dam age claims should likewise have been severed from the conservatorship proceeding.

120

The circumstances surrounding the filing of these two motions are extremely perplexing. The medical

affidavits that had already been filed raised sub stantial qu estion re garding M s. Gro ves’s capacity to retain counsel. At

(continued...)

-26-

Mr. Groves and his wife responded to each of Ms. Groves’s motions by providing letters

from Drs. Stalford and Franklin stating that Ms. Groves had moderate to severe dementia, that she

required “24 hour nursing care,” and that removing Ms. Groves from the nursing home would be

harmful to her. They also dismissed Ms. Groves’s assertions regarding her capacity as products of

her mental condition. Neither Mr. Barnes nor Ms. Travis121 responded to Ms. Groves’s assertions

that she was not incapacitated and that she did not need a conservator.

Ms. Groves’s motions should have provided a warning to the parties and the trial court that

this proceeding was careening out of control. Until the motions were filed, all petitioning parties and

the guardian ad litem had agreed that Ms. Groves was so incapacitated that she required a

conservator. Their only disagreement involved who the conservator should be. Ms. Groves’s

petitions should have served notice to the parties and the trial court that Ms. Groves’s incapacity was

at issue.

Despite the protestations in Ms. Groves’s motions, no other party – not Mr. Groves, not

Mses. Travis and Proctor, and not Mr. Barnes – took the position that Ms. Groves had the functional

and decision-making capacity required to care for herself, to manage her property and finances, and

to make decisions regarding her medical care. Instead, the competing parties focused most of their

energies on tearing into each other.122 The guardian ad litem did not retreat from his assertion that

Ms. Groves required a conservator but was either unable or unwilling to recommend who this

conservator should be. Thus, the parties must have been somewhat surprised when the trial court

ruled from the bench that Ms. Groves was not incapacitated and that she did not require a

conservator for any purpose.

B.

Mr. Groves insists that the trial court should not have ordered him to return the real property,

cash, and personal property after it concluded that Ms. Groves is not incapacitated. He asserts that

if Ms. Groves is not incapacitated, only she could request that the purported gifts be set aside and

120

(...continued)

the same time, the record contains no indication that Ms. Groves’s guardian ad litem was aware that she had retained

counsel or that the trial court had appointed Mr. Meeks as her attorney ad litem to contest the allegations of incap acity,

found not only in Mr. Groves’s petition but also in the petition filed by Mses. Travis and Proctor.

It is similarly unc lear ho w M r. Meeks could simultaneously repre sent bo th M s. Gro ves and M ses. T ravis and

Proctor because their positions regarding Ms. Groves’s capacity – judged by the papers filed on their behalf – were

paten tly inconsistent and opposed. Mses. Travis and Proctor had alleged that Ms. Groves was suffering from dementia,

that she was “basically not co mpe tent,” and that she was “not now capable o f taking care of herself or her b usiness

affairs.” To the contrary, Ms. Gro ves was asserting that she was of sound m ind and that she was not in nee d of a

conservator.

121

By this time, Ms. Proctor had rem oved herself as a party to this proceeding.

122

The level of animosity between Mr. Groves and M s. Travis increased as the litigation progressed. The

strength of their vituperation is reflected in their lawyers’ closing arguments. Mr. G roves’s lawyer characterized M s.

Travis as “not truthful” and questioned her ability to care for Ms. Gro ves, as well as her motives for d esiring to do so.

Ms. Travis’s lawyer characterized M r. Grove s as a “viper,” a “dec eitful, dishonest man,” and a “spider waiting to crawl

dow n a web and attack so meo ne.”

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that the trial court should not have addressed the challenged gifts because Ms. Groves herself never

challenged them.123 Mr. Groves’s standing argument has merit up to a point but will not carry the

day in this case.

An action to set aside a gift may be brought by the donor during his or her lifetime or by the

donor’s heirs or personal representative following the donor’s death. See, e.g., Fritts v. Abbott, 938

S.W.2d 420, 420 (Tenn. Ct. App. 1996) (suit by the personal representative of a deceased donor);

Haralson v. Haralson, No. 85-209-II, 1985 WL 3860, at *1 (Tenn. Ct. App. Nov. 27, 1985) (No

Tenn. R. App. P. 11 application filed) (suit by the donor’s heirs); Brown v. Weik, 725 S.W.2d 938,

940 (Tenn. Ct. App. 1983) (suit by donor). If a donor is alive but incapacitated, the suit may be filed

with the court’s permission by the donor’s conservator, next friend, or other legal representative.

Under the facts of this case, once the trial court concluded that Ms. Groves was “competent,” only

Ms. Groves could undertake to set aside the purported gifts to Mr. Groves and his wife.

In the same fashion, a suit to rescind a deed may be filed by the grantor or by the grantor’s

guardian or conservator if the grantor is incapacitated. York v. Georgia-Pacific Corp., 585 F. Supp.

1265, 1276-77 (D. Miss. 1984) (permitting suit by the grantor or his heirs); Loftis v. Johnson, 294

S.E.2d 511, 512 (Ga. 1982) (permitting suit by the grantor’s guardian); Schneider v. David, 564

N.Y.S.2d 727, 728 (App. Div. 1991) (holding that an action to set aside a conveyance belongs only

to the grantor as the party fraudulently induced); Kuehn v. Kuehn, 104 N.W.2d 138, 141 (Wis. 1960)

(permitting action by the conservator of a living grantor). A third-party who is a stranger to the

transaction cannot file suit to rescind a deed unless it can demonstrate an adverse effect on its legal

or equitable rights. ADCA Corp. v. Blumberg, 403 So.2d 547, 547 (Fla. Dist. Ct. App. 1981); City

of Bluefield v. Taylor, 365 S.E.2d 51, 55 (W. Va. 1987). Children or other members of a live

grantor’s family have no standing to file suit to rescind a deed because, as expectant heirs, they have

no legal or equitable interest in the grantor’s property. Frady v. Irvin, 264 S.E.2d 866, 869 (Ga.

1980); Berger v. Berger, 578 S.W.2d 547, 549 (Tex. Civ. App. 1979).

The trial court’s decision that Ms. Groves was competent narrowed the class of persons with

standing to seek to set aside the deeds conveying Ms. Groves’s property to Mr. Groves and his wife.

Ms. Groves herself, as the grantor, could certainly file suit to set the deed aside. However, Ms.

Travis, as a stranger to the conveyance, could pursue rescission only if the conveyance affected her

legal rights or interests. Even though she may have been one of Ms. Groves’s heirs, Ms. Travis had

no legally recognized interest in Ms. Groves’s property during her lifetime. Accordingly, Ms. Travis

lacked standing to seek rescission of the two deeds conveying Ms. Groves’s real property to Mr.

Groves and his wife.

Even though Mr. Groves has now correctly pointed out the consequences of the trial court’s

conclusion that Ms. Groves is not disabled, there are two reasons why he is not entitled to a reversal

of the portion of the judgment directing him to return Ms. Groves’s purported gifts. First, we have

reversed the trial court’s conclusion that Ms. Groves is not disabled and have determined that the

123

For the purpose of this opinion, we will take as correct Mr. Groves’s assertion that Ms. Groves never

requested that the purported gifts be set aside. Even though M s. Groves stated in her May 18 , 1999 mo tion that she

“would like to . . . . initiate action to re cover all prope rty . . . that have w rongfully taken [sic] from her,” she never

initiated this action as far as this record shows.

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record contains clear and convincing evidence that Ms. Groves’s functional and decision-making

capacity is severely impaired and that a conservator should be appointed for her. Second, Mr.

Groves did not object in the trial court to trying the issues regarding the purported gifts.

We have already concluded in Section II of this opinion that Ms. Groves’s functional and

decision-making capacity is severely impaired. Because of these impairments, the trial court should

have appointed a conservator for her. In light of the dispute involving the purported gifts to Mr.

Groves and his wife, the trial court should have specifically authorized Ms. Groves’s conservator

to ascertain whether these gifts were valid and to undertake to set them aside if they were not.

Instead of following this procedure, the trial court undertook to adjudicate the validity of the

disputed gifts in the conservatorship proceeding. Mr. Groves and his wife had timely notice that

these gifts were at issue and were given an adequate opportunity to present evidence to support their

claim that the gifts were valid. As a result, the parties presented fully developed cases both in

support of and in opposition to the validity of the gifts. Litigating these issues again would

unnecessarily dissipate the resources of the parties and the court, as well as Ms. Groves’s property.

However, requiring a second trial would be the only appropriate remedy if the trial court lacked

subject matter jurisdiction or if Mr. Groves and his wife had objected in a timely manner to the trial

court’s adjudicating these issues.

We have determined that the trial court had subject matter jurisdiction over the dispute

regarding the purported gifts. The purpose of a conservatorship proceeding is to protect the person

and property of persons whose functional and decision-making capacity has become impaired. In

re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995). Upon a finding that a

person’s incapacity requires the appointment of a conservator, Tenn. Code Ann. § 16-11-108 (1994)

vests the chancery court with jurisdiction over the incapacitated person’s person and property. This

jurisdiction is deeply rooted in the state’s parens patriae power to serve as protector of incapacitated

persons and to take all actions reasonably necessary to promote the incapacitated person’s best

interests. In re Johnson, 658 N.Y.S. 2d 780, 784 (N.Y. Sup. Ct. 1997); see also In re Orshansky,

804 A.2d 1077, 1103 (D.C. App. 2002); In re Guardianship of Hedin, 528 N.W.2d at 571.

It is the determination that a person is incapacitated enough to require a conservator that vests

the trial court with jurisdiction over the person’s property. Prior to this determination, adults are

presumed to be fully capable of managing their affairs, and the courts cannot exercise direct control

over their property. However, the trial court is not entirely powerless. In appropriate circumstances,

it may exercise control over the incapacitated person’s property indirectly by exerting its power over

the persons over whom it has jurisdiction.124

The disputed property in this case was in the hands of Mr. Groves and his wife. Accordingly,

upon a finding of incapacity, the trial court could have exercised control over the property because

124

For example, upon a proper showing, a court may enjoin an allegedly incapacitated person who is the subject

of a conservatorship proceeding from disposing of his or her property. Similarly, if the allegedly incapacitated person

has conveyed property to another person over whom the trial court has personal jurisdiction, the court may order that

person not to dispose of the property. However, the trial court cannot exercise similar control over property that the

alleged ly incapacitated person has conveyed to someone over whom the trial court does not have personal jurisdiction.

-29-

Mr. Groves and his wife were parties to the proceeding. In fact, the trial court did exercise control

over the property by entering a restraining order preventing Mr. Groves and his wife from disposing

of the property pending a final hearing. The record reflects that Mr. Groves and his wife recognized

and acquiesced125 in the trial court’s control over their use of the property. Between September 1998

and December 1999, Mr. Groves filed five motions requesting the court’s approval of various

transactions involving the property. Accordingly, we find that had the trial court determined that Ms.

Groves was incapacitated, it would have acquired jurisdiction over not only the property in her

possession but also the property that she had transferred to Mr. Groves and his wife.

Mr. Groves and his wife did not object to the trial court’s exercise of authority over them or

the disputed property in their possession. Similarly, they did not object to litigating the validity of

the purported gifts in the conservatorship proceeding. Parties cannot use non-jurisdictional errors

committed during a trial as their “ace-in-the-hole” should the trial’s outcome not be to their liking.

Davis v. State Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn. Ct. App. 1999); Varley v.

Varley, 934 S.W.2d 659, 667 (Tenn. Ct. App. 1996). Accordingly, parties who fail to take the steps

reasonably available to them to cure or mitigate the harmful effect of an error are not entitled to use

this error to obtain relief on appeal. Tenn. R. App. P. 36(a); In re Adoption of D.P.M., 90 S.W.3d

263, 266 (Tenn. Ct. App. 2002). Because Mr. Groves and his wife did not object during the

proceedings below to the trial court’s decision to address the issues regarding the disputed gifts, they

cannot now take issue with this procedural misstep on appeal.

Appellate courts may grant complete relief to the parties as long as they have fair notice and

a reasonable opportunity to be heard on the disputed issues. Tenn. R. App. P. 13(b), 36(a); Realty

Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 608 (Tenn. Ct. App. 1999). In this case,

Mr. Groves and his wife had fair notice in the trial court that the validity of the purported gifts was

at issue and introduced evidence designed to support their claim that these gifts were valid. They

are the ones who have taken issue with the trial court’s disposition of these gifts on appeal. They

have provided a record of the proceeding and have fully briefed the issues. Accordingly, to prevent

further needless litigation regarding the purported gifts, we have determined that we may address the

issues Mr. Groves and his wife have raised regarding the trial court’s decision to set these gifts aside.

See Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d 911, 916 (Tenn. Ct. App. 2000)

(addressing an issue raised for the first time on appeal in order to prevent further needless litigation).

C.

We turn now to the two deeds Ms. Groves executed in December 1997 conveying all her real

property to Mr. Groves and his wife. Mr. Groves insists that these deeds were “true gifts that should

not be revoked or rescinded.” We have determined that the evidence does not preponderate against

the trial court’s conclusion that Mr. Groves had a confidential relationship with Ms. Groves when

she executed these deeds and that Mr. Groves exerted undue influence upon Ms. Groves to obtain

them.

125

At one p oint, M r. Gro ves filed a motion req uesting the trial court to dissolve the order restricting his use of

the property. However, the record contains no ind ication that the trial court ev er heard or disposed of this motion. M ost

of the orders entered after M r. Gro ves filed the mo tion were entered b y agreement.

-30-

Ms. Groves and R. C. Groves began to rely more heavily on Mr. Groves after R. C. Groves

became ill in early 1994. On the day he was admitted to a nursing home, R. C. Groves and Ms.

Groves signed general powers of attorney giving Mr. Groves broad, unrestricted authority to act for

them in financial matters. Following R. C. Groves’s death in October 1995, Ms. Groves turned even

more to Mr. Groves and his wife for assistance as she became less able to care for herself. After Ms.

Groves fractured her spine, she was no longer able to live autonomously, and she was forced to move

in with Mr. Groves and his wife in September 1998.

Mr. Groves and his wife actively discouraged other family members from visiting Ms.

Groves after she moved into their house. In December 1998, three months after moving into her

brother-in-law’s house, Ms. Groves signed two quitclaim deeds prepared by Mr. Groves’s lawyer

conveying all her real property to Mr. Groves and his wife. The consideration for these deeds was

“love and affection and other good and valuable consideration.” Mr. Groves paid for the preparation

of the deeds and recorded them the day after Ms. Groves signed them.

To be valid, a deed must be the result of the conscious, voluntary act of a grantor who has

the capacity to transact business. Cason v. Cason, 116 Tenn. 173, 193-94, 93 S.W. 89, 94 (1905);

Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct. App. 2000). To have the capacity to transact

business, a person need only be able to reasonably know and understand the nature, extent, character,

and effect of the transaction. Mays v. Prewett, 98 Tenn. 474, 478, 40 S.W. 483, 484-85 (1897).

However, a deed to a grantee who is in a confidential relationship with the grantor can be set aside

if the grantee has exerted undue influence on the grantor to procure the deed. Brown v. Weik, 725

S.W.2d at 945.

In cases of this sort, any relationship between two persons in which one person is in a

position to exercise dominion and control over the other will be considered to be a confidential

relationship. Childress v. Currie, 74 S.W.3d at 328; Robinson v. Robinson, 517 S.W.2d 202, 206

(Tenn. Ct. App. 1974). The fact that one person has given another his or her general power of

attorney is not necessarily evidence of a confidential relationship as long as the person receiving the

power of attorney was not active in its procurement and has not exercised it. Childress v. Currie,

74 S.W.3d at 329.

Mr. Groves had possessed his sister-in-law’s general power of attorney since April 1994 but

had never exercised it. Thus, the existence of the power of attorney alone cannot establish the

existence of a confidential relationship. There is, however, more than ample evidence to establish

the existence of a confidential relationship between Ms. Groves and her brother-in-law and that Mr.

Groves had dominated this relationship ever since R. C. Groves died in October 1995. By the time

Ms. Groves executed the deeds in December 1998, she was completely dependent on Mr. Groves

and his wife for her housing, sustenance, medical care, and other support. She was incapable of

doing much other than basic personal hygiene without their assistance. Accordingly, the trial court

did not err by concluding that Mr. Groves was the dominant party in a confidential relationship with

Ms. Groves when she signed the deeds in December 1998.

The existence of a confidential relationship between the grantor and the grantee, by itself,

does not warrant rescinding a deed. Thus, persons seeking to rescind a deed must prove the

existence of other suspicious circumstances that would reasonably support a conclusion that the

-31-

grantor did not act freely and independently. These suspicious circumstances include, but are not

limited to, the grantor’s physical and mental deterioration and the grantee’s active involvement in

procuring the conveyance. The existence of a confidential relationship combined with a transaction

benefitting the dominant party gives rise to a presumption that undue influence was exercised. This

presumption effectively shifts the burden to the grantee to present clear and convincing evidence that

the challenged conveyance was fair. Fell v. Rambo, 36 S.W.3d at 847-48.

These conveyances clearly benefitted Mr. Groves and his wife because they received real

property worth between $60,000 and $65,000 for no monetary consideration. Mr. Groves actively

procured these deeds, and as a result of the conveyances, Ms. Groves, the weaker, more dependent

party, was left with essentially nothing. These circumstances were sufficient to shift the burden of

going forward with the evidence to Mr. Groves to prove that the conveyance was fair.

The evidence Mr. Groves offered on this point is surprisingly weak. He testified that Ms.

Groves simply decided to give him her real property, and the lawyer who prepared the deeds testified

that Ms. Groves “appeared” to know what she was doing when she signed them. This evidence falls

far short of establishing clearly and convincingly that these conveyances were fair and not the

products of undue influence. Accordingly, we affirm the trial court’s decision to set these

conveyances aside.

D.

Mr. Groves also asserts that the trial court erred by ordering him to return the remaining

proceeds of the $100,000 certificate of deposit Ms. Groves and her late husband had maintained at

the People’s Bank in Dickson. He argues that the evidence supports his claim that this money was

also a gift from Ms. Groves and her late husband. We respectfully disagree for two reasons. First,

we find that the evidence supports the trial court’s conclusion that Mr. Groves exerted undue

influence on his brother and sister-in-law to obtain this money. Second, we find that public policy

prevents Mr. Groves from keeping these funds because the purported gift was part of a fraudulent

scheme to qualify Ms. Groves and her late husband for governmental benefits to which they were

not entitled.

Mr. Groves’s relationship with his brother and sister-in-law became a confidential

relationship even before they gave him their unrestricted powers of attorney in April 1994. Prior to

that time, Ms. Groves and her late husband had become physically disabled and were relying

increasingly on Mr. Groves to assist them with their financial affairs. Ms. Groves’s husband, who

had always been in charge of their finances, had been hospitalized with a serious illness and was

facing a lengthy and expensive stay in a nursing home. Accordingly, the evidence supports the trial

court’s conclusion that Mr. Groves was in a position to exert undue influence on both his brother and

sister-in-law as early as March 1994.

Mr. Groves obtained the proceeds from the $100,000 certificate of deposit while his brother

was still hospitalized and after his brother learned that he was going to be admitted to a nursing

home. He took an active role in seeing to it that Ms. Groves surrendered the certificate of deposit

and delivered the proceeds to him. This transaction substantially depleted his brother’s and sister-in-

law’s life savings. There was no consideration for the transaction, and, according to Mr. Groves,

-32-

his brother and sister-in-law placed no restrictions on his use of the money.126 However, Mr. Groves

now claims that he told his brother that he “would keep it [the money] to have for them in case they

needed it.”

Receiving the proceeds of the $100,000 certificate of deposit substantially benefitted Mr.

Groves. Even if we were to accredit his self-serving testimony that he planned to use this money to

benefit his brother and sister-in-law, he did not anticipate being required to use much of these funds

because the plan was to use government benefits to defray most of their expenses. In light of the

nature of the relationship between Mr. Groves and his brother and sister-in-law when he received

these funds, Mr. Groves had the burden of proving by clear and convincing evidence that this

transaction was fair. Childress v. Currie, 74 S.W.3d at 328; Fell v. Rambo, 36 S.W.3d at 847-48.

Rather than establishing the fairness of the transaction, Mr. Groves’s testimony, taken with the other

evidence in the case, establishes that the transaction was entirely unfair and was, in fact, fraudulent.

Within days after receiving the proceeds of his brother’s and sister-in-law’s $100,000

certificate of deposit, Mr. Groves orchestrated qualifying them for food stamps, Medicaid and

TennCare. Ms. Groves and her late husband would not have been entitled to food stamps or

TennCare benefits had they disclosed that they owned a $100,000 certificate of deposit because these

programs have maximum income and asset eligibility requirements. Because both Ms. Groves and

her late husband qualified for TennCare and Ms. Groves qualified for food stamps, we must assume

that their applications for these benefits did not reveal the $100,000 certificate of deposit or the fact

that they had “given” these funds to Mr. Groves only days before they filed their applications.

The federal and state statutes governing the Medicaid and TennCare programs anticipate that

persons seeking benefits may attempt to pauperize themselves in order to qualify for benefits, and,

therefore, they contain remedies for this sort of conduct when it is discovered. Persons applying for

benefits must not only disclose the assets in their possession when they apply; they must also

disclose any transfer of assets occurring within thirty-six months prior to the date of their application

for benefits.127 Any person who received benefits after failing to disclose a transfer of assets for less

than fair market value occurring on or after the “look back” date is subject to a discontinuation of

benefits for a statutorily-defined period,128 and may also be subject to criminal prosecution if the

failure to disclose the transfer is intentional.129

126

According to Mr. Groves, his brother told him: “[H]ere’s a check for you and you can take it and do whatever

you wa nt with it.”

127

42 U.S.C.A. § 139 6p(c)(1)(B)(i) (W est Sup p. 20 02) defines how an applicant’s “look b ack” date is

determined.

128

42 U.S.C.A. § 1396p(c)(1)(E). For institutionalized persons, the num ber o f months of ineligib ility equals

the total, cumulative uncompensated value of all assets transferred by the person on or after the “look back” date divided

by the average co st to pro vide a private patient of nursing facility services in the state at the time of the application. 42

U.S.C.A. § 139 6p(c)(1)(E)(i)(I-II).

129

Tenn. Cod e Ann. § 71-5-118(b)(1)(A) (Supp. 2002 ).

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In addition to these penalties, the TennCare statutes provide two civil remedies to recover

wrongfully paid benefits from the recipient. Tenn. Code Ann. § 71-5-117(a) authorizes the

Commissioner of Health to file suit against a living recipient to recover benefits “incorrectly” paid

or to file suit against the recipient’s estate if he or she has died. In addition, if the benefits were paid

as a result of the recipient’s misrepresentation, Tenn. Code Ann. § 71-5-118(i) authorized the Bureau

of TennCare to initiate a contested case proceeding against the recipient to recover the “improperly”

paid benefits, as well as attorney’s fees and costs.

As a practical matter these civil remedies against the recipient will have little value if the

recovery is limited to the assets the recipient currently has on hand. These recipients are essentially

judgment-proof because their assets cannot exceed the maximum income and asset levels established

by law. For these remedies to be effective, the government payors must have the ability to set aside

wrongful conveyances. Other states permit government payors to use their debtor and creditor

statutes to set aside allegedly fraudulent transfers in order to make the assets subject to a judgment

for wrongfully paid benefits. See, e.g., Alberico v. Health Mgmt. Sys., Inc., 5 P.3d 967, 970 (Colo.

Ct. App. 2000); Crabb v. Estate of Mager, 412 N.Y.S.2d 508, 510 (App. Div. 1979).

Improperly or incorrectly paid TennCare benefits are “debts due the state.” Tenn. Code Ann.

§ 71-5-117(a). Accordingly, the State, having paid benefits to which the recipient is not entitled, is

a “creditor” as defined in Tenn. Code Ann. § 66-3-301(3) (1993). Because the State is a creditor,

the Bureau of TennCare and the Commissioner of Health may invoke Tennessee’s fraudulent

conveyance statutes to set conveyances aside if they were made for the purpose of qualifying the

recipient for benefits. Pursuant to Tenn. Code Ann. § 66-3-308 (1993), the courts may set aside any

conveyance a recipient of benefits made on or after his or her look-back date if the Bureau or the

Commissioner proves that the conveyance was made with an intent to defraud TennCare by

obtaining benefits to which the recipient would not otherwise have been entitled.

Conveyances or gifts made with an intent to delay, hinder, or defraud a creditor are “clearly

and utterly void.” Tenn. Code Ann. § 66-3-101 (1993). The evidence in this record supports the trial

court’s following three conclusions:

a deposit of $100,000 in a bank account would disqualify R. C.

Groves [and Ms. Groves] from federal subsidies such as food stamps

and Medicaid,

* * *

R. C. Groves may not have wanted to have seen he [sic] and his

wife’s $100,000 deposit dissipated by a nursing home, and he may

have decided to transfer those assets out of he [sic] and his wife’s

names in order to qualify for federal subsidies,

* * *

the monies owned by R. C. Groves and Ellen P. Groves was [sic]

taken out of the bank in order to qualify R. C. Groves and Ellen P.

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Groves for food stamps and [M]edicaid . . .. The Court is of the

opinion that R. C. Groves and Ellen P. Groves received these benefits

. . . because they had no substantial monies on deposit at a bank in

their names at the time of their application for said benefits.

In light of Mr. Groves’s role in promoting his brother’s and sister-in-law’s applications for food

stamps and TennCare, the evidence also suggests that Mr. Groves was privy to R. C. Groves’s plan

and assisted him in accomplishing the transfer of funds. In fact, given R. C. Groves’s physical

circumstances at the time, the transfer could not have occurred without Mr. Groves’s assistance.

We have concluded that the record contains clear and convincing evidence that Mr. Groves

was a party, along with his brother, to a conveyance undertaken for the sole purpose of enabling R.

C. Groves and Ms. Groves to qualify for governmental assistance to which they would not otherwise

have been entitled. Because of the fraudulent character of this conveyance and his role in it, Mr.

Groves is not entitled to gain personally from the transfer of funds by being permitted to retain the

money. Accordingly, the trial court did not err by ordering him to return the unspent remainder of

the $100,000 certificate of deposit.

Setting aside this transaction and directing Mr. Groves to return the remainder of the

proceeds of the $100,000 certificate of deposit does not necessarily result in returning these funds

to Ms. Groves. The State has a colorable claim to these funds because of the expenditures it has

made on behalf of Ms. Groves and her late husband. Accordingly, now that the funds are under the

trial court’s jurisdiction, the court should notify the Bureau of TennCare of these proceedings and

provide the Bureau with a reasonable opportunity to commence a judicial or administrative

proceeding to recover the payments either incorrectly or improperly paid.130

E.

As a final matter, we turn to the $21,075.34 in cash and old coins that R. C. Groves kept in

his house before he died. Ms. Smith, one of Ms. Groves’s neighbors, held these funds at R. C.

Groves’s request until October 11, 1995, when she returned them to Ms. Groves. Mr. Groves asserts

that his sister-in-law gave him the money outright soon after she received it.

The circumstances surrounding this purported gift bear all the earmarks of undue influence

and breach of a confidential relationship. Mr. Groves plainly had a confidential relationship with

Ms. Groves at the time because he possessed her general power of attorney and because of her

heightened dependence on him to take care of her financial matters. At this particular time, she was

even more dependent on Mr. Groves because her husband had just died. Because the transaction

benefitted Mr. Groves, he had the burden of presenting clear and convincing evidence that the

130

The State need not file suit to set aside the conveyance as fraudulent because the decision to invalidate the

gift has the same legal effect. It would appear that the State may either file suit in accordance with Tenn. Code Ann. §

71-5-117(a) or com mence a contested ca se pro ceed ing pursuant to Tenn. Co de A nn. § 7 1-5-1 18(i) to recover the bene fits

paid on behalf of Ms. Groves and her late husband.

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transaction was fair. He presented no such evidence. Accordingly, we affirm the portion of the trial

court’s order directing Mr. Groves to account for these funds and to return them to Ms. Groves.131

IV.

MR . GROVES ’S DEMAND FOR COMPENSATION

As a final matter, Mr. Groves asserts that the trial court erred by refusing to compensate him

for the “time, energy and money” he expended caring for Ms. Groves after her late husband died.

He insists that it would be “unconscionable” not to pay him $60 per day for the 161 days Ms. Groves

lived with him before she was placed in a nursing home, $40 per visit for the 181 visits he and his

family made to Ms. Groves’s home before she moved into his house, and $5,660 for take-out food

he allegedly provided Ms. Groves. Mr. Groves’s claim for $22,560 suffers from two fatal defects.

First, he provided no evidence that Ms. Groves agreed to pay him for these services or understood

that he expected to be paid for these services. Second, he presented no evidence establishing the

value of these services.

Family members are generally precluded from recovering for services provided to their close

relatives because the law presumes that these services were gratuitous. Gorrell v. Taylor, 107 Tenn.

568, 570, 64 S.W. 888, 888 (1901); Estate of Cleveland v. Gorden, 837 S.W.2d 68, 71 (Tenn. Ct.

App. 1992). This presumption is based on the recognition that

family life abounds in acts of reciprocal kindness which tend to

promote the comfort and convenience of the family, and that the

introduction of commercial considerations into the relations of

persons so closely bound together would expel this spirit of mutual

beneficence and to that extent mar the family unity.

Key v. Harris, 116 Tenn. 161, 171, 92 S.W. 235, 237 (1905). The presumption is rebuttable, and

so family members may obtain compensation for their services if they prove either that their relative

agreed to pay for the services or that the services were provided under circumstances reflecting that

the relative receiving the services knew that the relative providing them expected to be paid. In re

Estate of Hicks, 510 S.W.2d 263, 265 (Tenn. Ct. App. 1972); Cotton v. Estate of Roberts, 47 Tenn.

App. 277, 285-86, 337 S.W.2d 776, 780 (1960). The family member seeking compensation must

also establish either the amount of expenditures actually made on the relative’s behalf or the

reasonable value of the services rendered. See Bokor v. Holder, 722 S.W.2d 676, 681 (Tenn. Ct.

App. 1986).

Mr. Groves’s evidence fails on both counts. He presented no evidence that Ms. Groves ever

agreed to compensate him for the assistance that he and his family provided after her husband

131

These funds may likewise be subject to any claim the State may make to recover benefits paid on behalf of

Ms. Groves and her late husband.

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died.132 By the same token, the circumstances of this case are not so extraordinary that we should

impute to Ms. Groves an understanding that her brother-in-law and his family expected to be paid

for their kindnesses to her.133 Thus, Mr. Groves has produced no evidence of an express or implied

contract to compensate him. Even if he had, he provided no credible substantiation for the $60 per

day charge for keeping Ms. Groves in his home, the $40 per visit charge for visiting her, or the

$5,660 he claims to have spent buying food for Ms. Groves before she moved into his house.

Accordingly, we affirm the portion of the trial court’s order denying Mr. Groves’s claim to

compensation.

V.

We affirm the portions of the final order that (1) set aside the purported gifts to Mr. Groves

and his wife, (2) direct Mr. Groves to submit a full accounting of the money and real and personal

property he received from Ms. Groves and her late husband, (3) direct Mr. Groves and his wife to

reconvey Ms. Groves’s real property to her, and (4) deny Mr. Groves’s claim for compensation for

the services he and his family provided Ms. Groves after October 1995. We vacate the portions of

the final order finding that Ms. Groves was not incapacitated and that she was capable of signing a

last will and testament. Based upon our conclusion that Ms. Groves’s functional and decision-

making capacity are severely impaired, we remand the case with directions to conduct a hearing

consistent with this opinion and to enter an order appointing a conservator or conservators for Ms.

Groves and specifically defining their duties and responsibilities.134 We also tax the costs of this

appeal to Glendon P. Groves and Wilmuth Groves and their surety for which execution, if necessary,

may issue.

_____________________________

WILLIAM C. KOCH, JR., JUDGE

132

Mr. Groves did not testify that he eve r asked Ms. Gro ves for com pensation fo r the services that he and his

wife provided her after R. C. Gro ves died. In fact, he never testified that he and Ms. Gro ves even discussed the matter.

The only discussions Mr. Groves testified about were his conversations with R. C. Grove s in March and April 1994

involving the $1 00,0 00 certificate o f deposit. W hile Mr. Groves’s various accounts of these discussions are somewhat

inconsistent, the essence of his testimony is that R. C. Groves and his wife gave him the money “to do whatever you want

with it.” While Mr. Groves may have intended to use part of these funds to help his brother and sister-in-law, he never

testified that they gave him the m oney either in return for his promise to use it to take care of them or in payment for the

future services he would be providing to either or both of them.

133

Mr. Grove s did not mo ve out of his house or interrupt his job in order to care for Ms. Groves.

134

The court should specifically authorize Ms. G roves’s conservator to determine whether grounds exist to set

aside the two wills Ms. Gro ves executed after her husb and’s death and to take steps to invalidate either or both of these

wills if there are grounds to do so.

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