In The Matter of The Conservatorship of Donald E. Todd v. Tonya Todd Justice

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 29, 2010

IN THE MATTER OF THE CONSERVATORSHIP OF DONALD E. TODD
v. TONYA TODD JUSTICE

Direct Appeal from the Chancery Court for Hamilton County
No. 09-G-095 W. Frank Brown, III , Chancellor

No. E2009-02346-COA-R3-CV - FILED JUNE 14, 2010

This is a conservatorship case. Appellee filed a petition to appoint a conservator for her
father, the Appellant herein. The trial court granted the petition, appointing co-conservators
for Appellant, and charging fees and expenses to the Appellant’s funds, pursuant to Tenn.
Code Ann. § 34-1-114. Appellant appeals. Finding that the record is incomplete and, as
such, does not support, by clear and convincing evidence, a finding that Appellant was in
need of the court’s assistance, and that the trial court failed to properly follow the statutory
mandates required for appointment of a conservator, we vacate and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Vacated
and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

Walter E. Grantham, Chattanooga, Tennessee, for the appellant, Donald E. Todd.

Alexander W. Gothard, Chattanooga, Tennessee, for the appellee, Tonya Todd Justice.

OPINION

At the time of the hearing in this case, Appellant Donald E. Todd was seventy-four
years old. He is a retired electrical engineer and college professor. Dr. Todd has one child,
Appellee Tonya Todd Justice. Dr. Todd and Ms. Justice’s mother divorced when Ms. Justice
was a child. Since approximately 1981, Dr. Todd and Ms. Judith Bean have been
companions.1 Dr. Todd suffers from Alzheimer’s. On July 13, 2009, Ms. Justice filed a
petition for appointment of a conservator in the Chancery Court of Hamilton County.
Therein, Ms. Justice asked the court to appoint her as immediate interim conservator for her
father, pending a hearing and appointment of a permanent conservator. Ms. Justice
specifically averred that Dr. Todd was in need of a conservator because, among other things,
Ms. Bean was exerting “undue influence in having or attempting to have [Dr. Todd] change
his Will in her favor,” and in seeking to have herself named as the sole beneficiary of Dr.
Todd’s retirement and bank accounts. Ms. Justice asked that a guardian ad litem be
appointed for her father. Attached to her petition, Ms. Justice provided the September 10,
2007 evaluation report of Dr. Todd’s physician, Dr. Robert A. Catanese, and the July 1, 2009
examination report of Dr. Walter D. Parkhurst. Dr. Parkhurst confirmed Dr. Todd’s
Alzheimer’s diagnosis and indicated that the prognosis was “one of gradual, progressive
decline.” In addition to confirming the Alzheimer’s diagnosis, Dr. Catanese indicated that
Dr. Todd’s short term memory was most affected by his disease. Dr. Catanese also noted that
Dr. Todd suffers from chronic asthma.

By Order of July 13, 2009, the trial court appointed a guardian ad litem for Dr. Todd,
and authorized Ms. Justice to investigate Dr. Todd’s assets. Also on July 13, 2009, the trial
court entered a temporary restraining order, which indicates, in pertinent part, that:

[Dr. Todd’s] long time caregiver and girlfriend, Judith T.
Bean...walked out on Friday, July 10, 2009, and has
disappeared, but that before disappearing she had taken
numerous actions which might have resulted in undue influence
of [Dr. Todd] and she allegedly took other actions with respect
to [Dr. Todd’s] property and assets inconsistent with [Dr.
Todd’s] desires and best interests; therefore, there appears to be
good cause for concern about Judith T. Bean’s access to and
control over [Dr. Todd’s] property.

Based upon this finding, the court restrained and enjoined Ms. Bean from access to,
and actions concerning, Dr. Todd’s property, assets and investments. The court also
appointed Ms. Justice as her father’s interim conservator, and authorized her to protect,
marshal and secure Dr. Todd’s property, assets and investments. Interim Letters of
Conservatorship were entered in favor of Ms. Justice, which letters were to expire on July
24, 2009.

1
There is some confusion in the record as to whether Ms. Bean and Dr. Todd were married. The
answer to this question, however, is not essential to the disposition of this case.

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 Dr. Todd obtained counsel and, on July 15, 2009, filed a motion to rescind both the
temporary restraining order, and the order appointing Ms. Justice interim conservator.
Following a hearing on the motion, the court entered an Order on July 22, 2009, which
continued the restraining order against Ms. Bean, but revoked its previous appointment of
Ms. Justice as the interim conservator for her father. Because Dr. Todd had obtained his own
counsel, the court also relieved the guardian ad litem of further duties, except for the filing
of a written report. This report was filed on July 22, 2009, along with an affidavit of fees.

An evidentiary hearing began on July 24, 2009. The transcript of the July 24, 2009
hearing indicates that only Dr. Todd’s long time attorney, John Buhran, and the guardian ad
litem testified before the parties decided to confer among themselves. After doing so, the
parties announced to the court an agreement. Specifically, the transcript provides, in relevant
part:

THE COURT: Is there an announcement?

MR. PIERCE [Counsel for Ms. Justice]: Yes, Your Honor, there
is. I think we’ve come to some conclusions that we can live
with, I think.... I think what we’re talking about is the freeze on
the assets and the beneficiary designations, that type of thing,
that we discussed; but leave the money as it is, not put it with
any institution or whatever and continue with Ms. Bean and Ms.
Justice and, of course, Dr. Todd having the passwords and
having access and having the monthly statements and reports
like they’ve been having them for a number of years and that
everybody is comfortable with, just the freeze is in place. And
that, of course, bills and regular normal ordinary reasonable
expenses would be paid, things that are within normalcy for Dr.
Todd and how he lives.

And then we had talked about having cohealthcare agents
being Ms. Bean and–I don’t have that name–that Verble–you’ve
met Ms. Sally Brewer and Mr. Mike Verble. What’s the name
of the whole thing?

MR. GOTHARD [co-counsel for Ms. Justice]: Verble Estate
Preservation.

MR. PIERCE: Verble Estate Preservation and Advisors LLC be
the cohealthcare agent, and then the two cohealthcare agents

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would get together to agree as to who would be available at
given times and provide services and oversight on medications
and care.

We also talked about having Dr. Todd’s brother, Dr.
Gene Todd, do a bit of an inventory about weapons in the house,
because we believe some may or may not be locked away, and
also there’s a safe in the house, and do an inventory of that. Let
the brother do that while he’s here, if he would. And we believe
he would be agreeable to doing that. And I believe that’s pretty
much it. We didn’t really have a chance to discuss–although it
came up right as we were breaking up–about cost in this matter
and whether–how those would be handled.

THE COURT: Are you talking about clerk’s cost or attorney’s
fees?

MR. PIERCE: Attorney’s fees. Reasonable petition, we believe.

MR. GRANTHAM [counsel for Dr. Todd]: We would object to
that. The only other thing is on the freeze on the assets, we had
talked about except by Court order–

MR. PIERCE: Yes, that’s true.

MR. GRANTHAM: –on the three days notice–the idea being if
there’s a change in the market that’s that quick, counsel for the
petitioner and the respondent should be able to submit an
agreement, otherwise the Court can hear it.

MR. PIERCE: We talked about that and I think we agreed to go
with the court order, you know, even in equitable matters. I
mean, sometimes you get to the court a little more quickly than
others. I don’t think that will be a problem to get them back to
the court.

MR. GRANTHAM: And the situation would go back to
where...Dr. Todd, Ms. Bean and Ms. Justice will get information
from the institution in which there are investments, and that will
be confidential information that won’t be given to third parties

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 except maybe counsel as needed for this proceeding.

THE COURT: Okay. So we have the issue of fees and clerk’s
cost. That’s still up in the air right now.

MR. PIERCE: Right.

THE COURT: Is counsel satisfied with everything else that’s
generally covered right now.

MR. ATCHLEY [counsel for Ms. Bean]: Yes, Your Honor, and
I believe, basically, everybody sees this as an interim order.

MR. PIERCE: Yes.

MR. GRANTHAM: That’s it, Your Honor.

The parties each provided the court with a proposed order; although the court adopted
Dr. Todd’s proposed order, the court modified the proposed order. In addition to the
following, the trial court specifically incorporated the portion of the transcript set out above.
The Order was entered on August 27, 2009, and provides, in pertinent part, as follows:

1. Pending further order of the Court, Donald E. Todd, Tonya
Todd Justice, and Judith T. Bean shall have passwords and other
means of access to information (status, activity, balance, and
beneficiary designation) concerning each investment and asset
of Donald E. Todd for the purpose of preparation of monthly
reports, accounting and/or tax purposes. No information
obtained hereunder by Tonya Todd Justice or Judith T. Bean
shall be disclosed to anyone other than Donald E. Todd or
counsel for a party hereto, for use in this case.

2. Donald E. Todd shall not sell, purchase, or change [the
words “benificiary or” were deleted] any investment or asset
except upon three (3) days notice to all parties and the Court’s
approval, or all parties’ approval, and not change ownership
or beneficiary on any asset without court permission.

3. Donald E. Todd shall have access to his income (and to the
extent necessary, the principal from investments), and he may

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 expend the same for his ordinary and reasonable living
expenses, expressly including travel expenses.

4. Judith T. Bean shall carry out her duties as his healthcare
attorney-in-fact pursuant to the existing power of attorney
executed by Donald E. Todd. Verble Estate Preservation and
Advisors, LLC will serve as co-healthagent with Ms. Bean, and
they are to confer and reach agreement with her as to who will
be available at given times and who will provide services and
oversight of medications and medical care, with each having
authority to act for Dr. Todd when presented with him.

5. The Court accepts the parties’ agreement as such
represented the least restrictive alternatives upon Donald E.
Todd that are consistent with the protection of Dr. Todd and
his property.

6. Dr. Gene Todd shall make and provide an inventory of the
weapons in the residence and the contents of the home safe.

7. The Court finds Donald E. Todd to be partially disabled
and that Dr. Todd is in need of assistance from the court.

8. Court costs are taxed to [the words “Petitioner Tonya Todd
Justice” were deleted] the funds of Donald E. Todd, for which
execution may issue, if necessary. This matter is closed
pending further proceedings.

(The bold and italicized sections represent changes made to the proposed order by the trial
court).

On August 27, 2009, but before entry of the foregoing order, Dr. Todd and Ms. Bean
filed a motion objecting to the order. Dr. Todd and Ms. Bean asked the court to alter or
amend the oral agreement made by the parties at the July 24, 2009 hearing. In relevant part,
Dr. Todd and Ms. Bean averred that: (1) Ms. Justice and/or her counsel had already made
some type of agreement with the Verble firm prior to July 20, 2009, (2) Sally Brewer (a
Verble agent) had indicated that all future medications would be given by Verble (which was
an alleged violation of the court’s order), and that, based upon the foregoing, Verble should
be removed as co-healthcare agent for Dr. Todd.

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 After the August 27, 2009 order providing for a conservator was entered, several other
motions were filed. On September 8, 2009, the guardian ad litem filed a motion to approve
her fees, along with her affidavit and other supporting documentation, outlining some
$2,062.50 in fees. On September 29, 2009, Mr. Pierce, initial counsel for Ms. Justice, filed
a motion for his costs and fees, along with his affidavit, and supporting documentation,
outlining $24,625.00 in fees.2 On October 8, 2009, Dr. Todd filed an objection to the
requested fees and costs. Therein, he objects to the payment of these costs and fees,
specifically arguing that:

[Dr. Todd] relies upon T.C.A. § 34-1-114 which
expressly provides for taxation of court costs and fees of the
attorney for the petitioner and the guardian ad litem against the
funds [Dr. Todd] only when a fiduciary is appointed, and T.C.A.
§ 34-1-101(8) provides that for Chapters 1-2 of Title 34 of the
Tennessee Code Annotated “fiduciary” means a conservator. In
the case before the Court no conservator was appointed.

[Dr. Todd] further relies upon T.C.A. § 34-1-107(a) for
objection to the taxation of the guardian ad litem’s fee against
his funds. Adversary counsel entered notice of appearance July
15, 2009 with notice to [Ms. Justice’s] attorney and to the
guardian ad litem. Time spent and services rendered by [the
guardian ad litem] after her receipt of notice that [Dr. Todd] was
represented by adversary counsel were unnecessary and should
not be taxed against [Dr. Todd’s] funds.

At the July 24, 2009 hearing in this cause, the agreement
of the parties was announced, and [Ms. Justice’s] attorney
expressly stated there was no agreement for taxation of costs
and fees. The announced agreement was intended to provide for
Verble Estate Protection to assist Ms. Bean as [Dr. Todd’s]
healthcare attorney in fact and to provide that [Dr. Todd] would
make no change in his investments except by agreed order, or
upon three days’ notice to all parties. Except for the provision
relating to change of investments, the parties agreed to keep in
place the arrangements established by [Dr. Todd] well before
the initiation of this action.

2
Mr. Pierce’s motion to withdraw as counsel was granted on September 21, 2009.

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 T.C.A. § 34-6-204(a)(1) provides that unless the Court
finds by clear and convincing evidence that the attorney in fact
under the durable power of attorney for health care is acting on
behalf of the principal in bad faith, the attorney in fact has
priority over all others to act for the principal in all matters of
health care decisions, and even a conservator cannot revoke or
amend the durable power of attorney for health care nor replace
the designated attorney in fact. [Ms. Justice], through counsel,
acknowledged that [Dr. Todd’s] health care needs were being
properly met and offered no evidence of any bad faith exercise
of [Dr. Todd’s] health care power of attorney or any good cause
for the revocation of that power.

* * *

There has been no evidence offered that [Dr. Todd’s]
property requires protection of the Court. Historically, [Dr.
Todd] has made only infrequent investment changes. At the
July 24, 2009 hearing, [Dr. Todd] agreed that, except by agreed
order, or upon three days’ notice to all parties, he would make
no change in his investments, and he would not change the
beneficiary of any investment. Except for said agreement, the
Court’s order entered August 27, 2009 was to simply keep in
place an arrangement that [Dr. Todd] had established well
before the initiation of this action.

* * *

With regard to the requested fee of petitioner’s attorney,
[Dr. Todd] not only objects to its taxation against his funds, but
strenuously objects to the amount requested as grossly
excessive.

In response to Dr. Todd’s filing, Mr. Pierce filed a response on October 8, 2009,
wherein he argued that, based upon the court’s finding that Dr. Todd “is partially disabled
and in need of assistance of the Court pursuant to T.C.A. §34-1-126,” Dr. Todd became a
“[w]ard of the Court,” and that a conservator, pursuant to Tenn. Code Ann. §32-1-101(4),
“either was appointed...or would have been appointed pursuant to T.C.A. §34-1-114(a) but
for the fact that the parties entered into and the Court approved a compromise pursuant to
T.C.A. § 34-1-121.” (Emphasis in original). Mr. Pierce also defended the amount of the

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requested fees. On October 9, 2009, Ms. Justice also filed a response to Dr. Todd’s
objection, arguing that Ms. Bean, Verble Estate Preservation and Advisors, LLC [“Verble”],
and Ms. Justice had all been appointed co-conservators for Dr. Todd; consequently, Ms.
Justice argued that fees were properly payable from Dr. Todd’s funds.

All pending motions were heard by the court; however, there is no transcript of this
hearing in the record. On October 12, 2009, the court entered an order. Concerning the
question of whether the trial court, in fact, appointed a conservator for Dr. Todd, the court
states in its October 12, 2009 order:

Upon first glance, it is easy to understand the position of
Dr. Todd. Technically, the [August 27, 2009] Order does not
appoint a “conservator” by name or title. However, if we
examine the substance of the Order, something different
appears. The court designated/appointed Verble to be the “co-
healthcare agent” with Ms. Bean....” Dr. Todd had named Ms.
Bean to be his attorney-in-fact and agent for him pursuant to the
terms of a healthcare power of attorney he signed. The court
cannot appoint a co-attorney-in-fact. However, the court can
appoint a limited conservator of the person of Dr. Todd. The
court did so by the substance of the Order. [Counsel for Ms.
Justice] makes this point in his Response [to the motions for
payment of fees] and refers to the definition set forth in Tenn.
Code Ann. §34-1-101(4):

(4) “Conservator” or “coconservator” means a person or
persons appointed by the court to provide partial or full
supervision, protection and assistance of the person or property,
or both, of a disabled person:

Counsel for Dr. Todd is correct that the court does not
remove an attorney in fact unless bad faith or good cause is
found for such removal. There were allegations made, which if
proved, could have resulted in the removal of Ms. Bean as
attorney in fact of Dr. Todd’s healthcare. The “settlement”
prevented additional evidence, pro or con, on this subject matter,
from being introduced.

* * *

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 [T]he Petition [to appoint a conservator for the person of Dr.
Todd] was granted in part and [] the court did appoint Verble to
be (co)limited conservator of Dr. Todd’s healthcare, even
though the term “conservator” was not used. The duties
assigned to Verble meet the definition of a conservator.

* * *

Thus, when one looks at the substance of the Order, a
very limited conservatorship was instituted and imposed.

Pursuant to Tenn. Code Ann. §34-1-114(a) and having clarified that it did, in fact,
appoint a conservator, the trial court went on, in its October 12, 2009 Order, to award
guardian ad litem fees of $2,062.50 to be paid from Dr. Todd’s funds. The court also
awarded Mr. Pierce fees of $6,700.00 from Dr. Todd’s funds, with Ms. Justice being
responsible for the balance of Mr. Pierce’s fees.

On November 10, 2009, Dr. Todd filed an objection to the trial court’s October 12,
2009 order, on grounds that he was not “afforded a hearing on the motion[s].” Dr. Todd’s
objection was denied by order of November 18, 2009. He appeals and raises four issues for
review as stated in his brief:

1. Did the trial court, after accepting the compromise of the
parties, abuse its discretion by expanding that compromise
beyond the parties’ agreement and beyond the evidence
presented to the Court?

2. Did the court err in finding that Donald E. Todd was a
“disabled person” as defined in Tennessee Code Annotated §
34-1-101(7)?

3. Is the designation of a “co-healthcare agent” the same as a
conservator under Tennessee Code Annotated § 34-1-101(4)?

4. Did the court err in taxing costs and filing fees, guardian ad
litem fees, and petitioner’s attorney fees against the respondent?

It is a well settled that a trial court speaks through its orders. Palmer v. Palmer, 562
S.W.2d 833, 837 (Tenn. Ct. App.1997). As set out in full context above, in its October 12,
2009 order, the trial court specifically stated that “a very limited conservatorship was

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instituted and imposed” in this case; thus, by the plain language of its order, the trial court
settled the question raised by Dr. Todd in his October 8, 2009 objection to the requested
guardian ad litem and attorney’s fees concerning whether the court, in fact, appointed a
conservator or merely appointed a healthcare agent for Dr. Todd. Because the court
specifically states that it imposed a conservatorship, we will apply the law applicable to
conservators and their wards.

A“conservator” or “co-conservator” is “a person or persons appointed by the court to
provide partial or full supervision, protection and assistance of the person or property, or
both, of a disabled person.” Tenn. Code Ann. § 34-1-101(4). This Court has described the
role of a conservator as follows:

A conservator occupies a fiduciary position of trust of the
highest and most sacred character. Grahl v. Davis, 971 S.W.2d
373, 377 (Tenn.1998) (citing Meloy v. Nashville Trust Co., 177
Tenn. 340, 149 S.W.2d 73 (1941)). Although the conservator
plays a most important fiduciary role, it is significant to note that
“the court itself is ultimately responsible for the disabled
persons who come under its care and protection.”

In re Conservatorship of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App.1995) (citing
Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072 (1941); In re Ellis, 822 S.W.2d 602,
607 (Tenn. Ct. App.1991)). (footnote omitted). Consequently, the authority, rights and
responsibilities of a conservator are not independent of the court. “Conservators act as the
court's agent and are under the court's supervision.” Clayton, 914 S.W.2d at 90. The courts
appointing conservators “retain continuing control over guardians and conservators because
the persons who accept these appointments become ‘quasi-officials' [ ] of the court
appointing them.” Clayton, 914 S.W.2d at 92 (citing Logan v. Graper, 155 Tenn. 565, 4
S.W.2d 955, 956 (1927)). Because a conservator is, in essence, the agent through whom the
court manages the affairs of a ward, the right to choose its representatives is important to the
tribunal. Monteverde v. Christie, 134 S.W.2d 905, 910 (Tenn. 1939).

“Because of the value our society places on individual autonomy and
self-determination, persons seeking the appointment of a conservator must [first] prove by
clear and convincing evidence that the person for whom a conservator is sought is a ‘disabled
person.’” In re Conservatorship of Groves, 109 S.W.3d 317, 330 (Tenn. Ct. App. 2003)
(quoting Tenn. Code Ann. § 34-1-126). Specifically, Tenn. Code Ann. §34-1-126 provides
that “[t]he court must find by clear and convincing evidence that the respondent is fully or
partially disabled and that the respondent is in need of assistance from the court before a

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fiduciary can be appointed.”3 Clear and convincing evidence is evidence that “eliminates all
serious or substantial doubt concerning the correctness of the conclusions to be drawn from
the evidence. Evidence satisfying this standard will produce in the fact-finder's mind a firm
belief or conviction regarding the truth of the factual propositions sought to be established
by the evidence.” In re Groves, 109 S.W.3d at 330. (citations omitted). As explained by this
Court in In re Conservatorship of Groves:

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. 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.

In re Conservatorship of Groves, 109 S.W.3d at 330 (footnote omitted).

Once the petitioner proves, by clear and convincing evidence, that the person for
whom the conservatorship is sought is fully or partially disabled, and that the person is in
need of assistance from the court, the designation of a particular person to serve as a
conservator is left “‘to the discretion of the appointing court, and an appellate court will
interfere with the exercise of this discretion only in case of a clear abuse.’” Estate of H.C.
Powers v. Rogers, No. 02-A-01-9310-CH-00227, 1994 WL 695419, at *4 (Tenn. Ct. App.

3
The term “fiduciary” refers to “a guardian, co-guardian, conservator or co-conservator.” Tenn.
Code Ann. § 34-1-101(8).

The term “disabled person” is defined as:

[A]ny 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.

Tenn. Code Ann. § 34-1-101(7).

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Dec. 13 1994) (quoting In re Rockwell, 673 S.W.2d 512, 516 (Tenn. Ct. App.1983)).4
Under Tenn. Code Ann. § 34-3-103, in order to appoint a conservator, the trial court must
make two determinations: (1) what is in the best interest of the disabled person, considering
all relevant facts; and (2) who, under the prioritized list, is the appropriate conservator.
Crumley, 1997 WL 691532, at *3. Once the court determines that the best interest of the
respondent would be met by appointment of a conservator, then the court must make a
determination as to the person or entity that will best serve as conservator. Because we favor
autonomy of the individual to decide his or her affairs, in reaching a decision to appoint a
conservator, the court is statutorily mandated to impose the least restrictive alternative:

The court has an affirmative duty to ascertain and impose the
least restrictive alternatives upon the disabled person that are
consistent with adequate protection of the disabled person and
the disabled person's property.

Tenn. Code Ann. § 34-1-127.

Consequently, “a petition for the appointment of a conservator requires the lower
court to make legal, factual, and discretionary determinations[,]” each of which requires a
different standard of review. Crumley v. Perdue, No. 01-A-01-9704-CH00168, 1997 WL
691532, at *2 (Tenn. Ct. App. Nov.7, 1997). On appeal, a trial court's factual findings are
presumed to be correct, and we will not overturn those factual findings unless the evidence
preponderates against them. Tenn. R. App. P. 13(d) (2008); Bogan v. Bogan, 60 S.W.3d 721,
727 (Tenn.2001). For the evidence to preponderate against a trial court's finding of fact, it
must support another finding of fact with greater convincing effect. Watson v. Watson, 196

4
Tenn. Code Ann. § 34-13-103 provides a hierarchy of persons to be considered for the role of
conservator, to wit:

Subject to the court's determination of what is in the best interests of the
disabled person, the court shall consider the following persons in the order
listed for appointment of the conservator:

(1) The person or persons designated in a writing signed by the alleged
disabled person;
(2) The spouse of the disabled person;
(3) Any child of the disabled person;
(4) Closest relative or relatives of the disabled person; and
(5) Other person or persons.

Tenn. Code Ann. § 34-13-103. “The best interest analysis and the fifth choice provides the court with some
discretion.” Crumley, 1997 WL 691532, at *2.

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S.W.3d 695, 701 (Tenn. Ct. App.2005) (citing Walker v. Sidney Gilreath & Assocs., 40
S.W.3d 66, 71 (Tenn. Ct. App.2000); The Realty Shop, Inc. v. RR Westminster Holding,
Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.1999)). We review a trial court's conclusions of law
under a de novo standard upon the record with no presumption of correctness. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993) (citing Estate of Adkins v.
White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App.1989)). We review
discretionary determinations under an abuse of discretion standard. Crumley, 1997 WL
691532, at *2. A trial court abuses its discretion when it has applied an incorrect legal
standard or has reached a decision which is against logic or reasoning that caused an injustice
to the party complaining. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Only after the foregoing mandates have been satisfied may a court enter an order
appointing a conservator. That order must:

(1) Name the conservator or conservators and, in the court's
discretion, a standby conservator or conservators;
(2) Enumerate the powers removed from the respondent and
vested in the conservator. To the extent not specifically
removed, the respondent retains and shall exercise all powers of
a person who has not been found to be a disabled person;

Tenn. Code Ann. § 34-3-107(1) and (2).

In cases where a conservator is appointed, the court may order costs to be paid from
the ward’s funds, as follows:

(a) If a fiduciary is appointed, the costs of the proceedings,
which are the court costs, the guardian ad litem fee, the required
medical examination costs and the attorney's fee for the
petitioner, shall be charged against the property of the
respondent to the extent the respondent's property exceeds the
supplemental security income eligibility limit. If no fiduciary is
appointed, the costs of the proceedings shall be charged against
the petitioner. The guardian ad litem fee and the attorney's fee
for the petitioner shall be established by the court. If a fiduciary
is cited for failure to file an inventory or accounting, the costs
incurred in citing the fiduciary, in the discretion of the court,
may be charged to and collected from the cited fiduciary.

Tenn. Code Ann. § 34-1-114(a).

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 Throughout all of these proceedings, Dr. Todd has the following rights:

(1) On demand by respondent or the guardian ad litem, a hearing
on the issue of disability;
(2) Present evidence and confront and cross-examine witnesses;
(3) Appeal the final decision on the petition;
(4) Attend any hearing; and
(5) Have an attorney ad litem appointed to advocate the interests
of the respondent.

Tenn. Code Ann. § 34-3-106.

Following our review of the record, and in light of the foregoing analysis, the
problems with this case are myriad. After consideration, it appears that the various problems
with the case stem from two omissions: (1) the record was not properly developed and is,
therefore, incomplete, and (2) the trial court failed to follow the legal tenets discussed above.
Before delving into these omissions, we will first discuss the parties alleged agreement.

Agreement

After conferring at the July 24, 2009 hearing, the parties announced to the court that
they had reached an agreement. The parties’ announcement is set out in full above.
Although the parties’ purported to agree concerning the appointment of Verble, and Ms.
Bean as co-healthcare agents for Dr. Todd, as noted above, before the trial court entered its
August 27, 2009 order on the agreement, Dr. Todd and Ms. Bean filed a motion, objecting
to the agreement and asking the court to alter or amend the oral agreement announced by the
parties at the July 24, 2009 hearing.

Concerning the alleged agreement between the parties that was announced at the July
24, 2009 hearing, the trial court stated, in its October 12, 2009 order, that:

The court knew problems lay on the horizon because one of the
attorneys asked, after the agreement was announced and
accepted, about payment of the fees. Because the parties had
neither discussed, nor agreed upon the issue of who was
responsible for the payment of the attorney’s fees, that matter
was deferred until a formal request was made or the parties
could agree upon such. The second indication of future
problems was shown by the inability of the parties to agree upon
the terms of the Order to be entered. The court received two

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 proposed orders. Third, since the court entered an Order on
August 27, 2009, the parties have accused the others of violating
the terms of the Order. Indeed, Dr. Todd and Ms. Bean filed a
Motion on August 27, 2009, 21 minutes before the Order was
filed....

Because “the court itself is ultimately responsible for the disabled persons who come
under its care and protection,” Hinds v. Buck, 177 Tenn. 444, 150 S.W.2d 1071, 1072
(1941), the authority, rights and responsibilities of a conservator are not independent of the
court. See, e.g., Clayton, 914 S.W.2d at 90. Consequently, the appointment of a conservator
is “[s]ubject to the court's determination of what is in the best interests of the disabled
person.” Tenn. Code Ann. § 34-13-103. “Persons do not attain the office of conservator by
contract or family relationship.” AmSouth Bank v. Cunningham, 253 S.W.3d, at 642.
Rather, “[t]hey are appointed to act in the best interests of the disabled adult person for whom
they are partially or fully responsible in the discretion of the court.” Id.

Given the important nature of conservatorship actions, and given the grave risk of
unnecessarily removing a person’s autonomy, we hold, as a matter of law, that a court may
not avoid its statutory obligation, to determine what is in the disabled person’s best interest,
by deferring to the agreement of the parties. This is not to say that parties may not confer and
present an agreement to the court; however, the court must make an independent best interest
determination before approving that agreement. From a review of the record, this did not
happen in the present case.

As discussed above, no agreement was reached in this case because Dr. Todd and Ms.
Bean both withdrew their consent prior to entry of the August 27, 2009 order; however, even
if the parties had actually reached an agreement, the court would still have to indicate that
it had made a best interest inquiry. Neither the August 27, 2009 order, nor the October 12,
2009 order contain the words “best interest.” On the face of these orders, therefore, it would
appear that the trial court failed to consider Dr. Todd’s best interests in this case. Even from
the substance of those orders, we are unable to infer that the court made a best interest
inquiry. The best interest analysis not only includes the question of whether a conservator
is needed, but it also includes the question of who should be appointed to serve in that role.
Tenn. Code Ann. § 34-13-103. Here, the trial court appointed Verble, and Ms. Bean to be
co-conservators. The court made this decision despite its statement, in the October 9, 2009
order, that “[t]here were allegations made, which if proved, could have resulted in the
removal of Ms. Bean as attorney in fact of Dr. Todd’s healthcare. The “settlement”
prevented additional evidence, pro and con, on this subject matter, from being introduced.”
Without addressing the question of whether the trial court had the authority to remove Ms.
Bean as Dr. Todd’s attorney-in-fact for healthcare, the question of whether Ms. Bean was

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acting in Dr. Todd’s best interest is absolutely necessary to the question of whether she
should be a conservator in this case. As discussed in 32 Am Jur. 2d Guardian and Ward §39
(2010):

[T]he rationale behind guardianship and conservatorship
proceedings is to promote the best interests of the incapacitated
person... The best interests of the ward should be the decisive
factor in making any guardianship choice on his or her behalf.
Even though there may be a statutory preference of appointment
accorded to blood relatives with respect to the guardianship or
conservatorship of an incapacitated adult, the best interest of the
incapacitated person is ordinarily the overriding, or paramount
consideration. Thus, a statutory preference will not be
recognized if the appointment of the next of kin would be
affirmatively contrary to the best interests of the incompetent or
his or her estate by being deleterious thereto in some significant
way. Even in the absence of a statutory preference, the best
interests and welfare of the incapacitated person must control...

(Footnotes omitted).

The trial court is correct that the record is not developed in the area of whether Dr.
Todd’s best interest would be served by appointment of Ms. Bean (or, in fact, Ms. Justice
and/or Verble) as his conservator. Based upon our holding that a court cannot defer its best
interest analysis to the agreement of the parties, the trial court should have required further
evidence regarding the potential conservators in order to determine whether each has Dr.
Todd’s best interest as their goal. In the absence of this evidence, the trial court could not
make a determination as to Dr. Todd’s best interests as statutorily required.

Despite the acknowledged problems with the parties’ alleged agreement, the trial court
nonetheless proceeded to enter an order, attempting to memorialize that agreement. Based
upon the foregoing law, when Dr. Todd and Ms. Bean filed their objection to the trial court’s
order (before that order was entered), the trial court should not have entered the order, but
instead should have continued with the evidentiary hearing. The question of whether the
court erred in modifying the proposed order is rendered moot by our finding that the order
should never have been entered. In short, the trial court should have refrained from entering
this order in favor of re-opening the proof. The fact that this was not done results in an
incomplete record.

Incomplete Record

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 In order for the trial court to appoint a conservator, the petitioner must first prove, by
clear and convincing evidence: (1) that the person for whom the conservatorship is sought
is fully or partially disabled and (2) that the person is in need of assistance from the court.
Tenn. Code Ann. §34-1-126. In order to meet this burden of proof, the petitioner may
provide the court with the report of the respondent’s physician. However, the report must
comply with certain criteria set out at Tenn. Code Ann. § 34-3-105:

(a) If the respondent has been examined by a physician or,
where appropriate, a psychologist not more than ninety (90) days
prior to the filing of the petition and the examination is
pertinent, the report of the examination shall be submitted with
the petition.... The physician or psychologist, on completing the
examination, shall send a sworn written report to the court with
copies to the petitioner and the guardian ad litem. The
physician's or psychologist's report shall be made a part of the
court record.

* * *

(c) Each physician's or psychologist's sworn report shall contain
the following:

(1) The respondent's medical history;
(2) A description of the nature and type of the respondent's
disability;
(3) An opinion as to whether a conservator is needed and the
type and scope of the conservator with specific statement of the
reasons for the recommendation of conservatorship; and
(4) Any other matters as the court deems necessary or advisable.

Here, Ms. Justice attached to her petition the examination reports of Dr. Walter
Parkhurst and Dr. Robert Catanese. However, after review, it appears that only Dr.
Parkhurst’s report complies with Tenn. Code Ann. §34-3-105. Ms. Justice’s petition was
filed on July 13, 2009. On his report, Dr. Catanese indicates that the dates of consultation
were August 23, 2007 and November 7, 2007. Consequently, Dr. Catanese’s report should
not have been considered as it involves examinations conducted beyond the ninety days prior
to the filing of the petition.

Turning to Dr. Parkhurst’s report, he lists Dr. Todd’s diagnosis as Alzheimer’s
disease, with a prognosis of “gradual, progressive decline.” Based upon these conclusions,

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Dr. Parkhurst opined that Dr. Todd was disabled and in need of supervision for both his
personal and financial matters, and specifically noted that Dr. Todd “requires supervised
medication administration.”

In addition to Dr. Parkhurst’s report, the trial court heard some evidence at the July
24, 2009 hearing. However, the presentation of evidence was suspended when the parties
announced their “agreement.” The only testimony heard on July 24, 2009 was that of Dr.
Todd’s long-time attorney, John Buhran, and that of the guardian ad litem, Mollie Corn.

In relevant part, Mr. Buhran testified that Dr. Todd had come to his office to execute
a springing power of attorney, naming Ms. Justice as his attorney-in-fact. Mr. Buhran further
testified that he had noticed cognitive changes in Dr. Todd when Dr. Todd visited Mr.
Buhran’s office approximately one month prior to the hearing. Mr. Buhran also referred to
other documents that Dr. Todd had executed in relation to his estate planning. On cross-
examination, Dr. Todd’s counsel asked Mr. Buhran to elaborate concerning the nature of
these documents. When Mr. Buhran could not recall the specific documents, the court
suspended his testimony so that Mr. Buhran could procure Dr. Todd’s file from his office.
Ultimately, due to the parties’ alleged agreement, no further testimony from Mr. Buhran was
presented.

From the trial court’s October 9, 2009 order, it appears that Dr. Todd had executed
a healthcare power-of-attorney in favor of Ms. Bean. However, the transcript contained in
the record does not address the healthcare power-of-attorney, nor is the document included
in the appellate record. Consequently, this Court cannot review whether this power-of-
attorney is valid, or whether it exists at all.

In relevant part, Ms. Corn testified that, when she visited Dr. Todd at his home, he
appeared very agitated, and that he was specifically angry with Ms. Justice for bringing the
petition. Ms. Corn indicated that Dr. Todd made it “very, very clear that he was vehemently
opposed to this conservatorship.”

The foregoing comprises the bulk of the material evidence adduced in this case. In
accordance with the statutory scheme, in order to have properly appointed a conservator for
Dr. Todd, this evidence must clearly and convincingly show that Dr. Todd is disabled under
the statutory definition, and that he is in need of the protection of the court. Moreover, this
evidence must preponderate in favor of the trial court’s finding that appointment of a
conservator is in Dr. Todd’s best interest and is the least restrictive alternative, and must also
support the appointment of Verble, Ms. Justice, and Ms. Bean as the proper co-conservators
for Dr. Todd. We find that the truncated evidence in this record does not satisfy these
requirements.

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 Although a diagnosis of Alzheimer’s disease may indicate that a person is a “disabled
person,” as defined in Tenn. Code Ann. §34-1-126, that fact, standing alone, does not
indicate that a person is in need of the court’s help. Because Dr. Todd has not had the
opportunity to present his case (as discussed below), the record does not clearly and
convincingly support a finding that Dr. Todd is a disabled person under the statutory
definition. Moreover, even if a person is found to be disabled under the statute, the court
must also find, by clear and convincing evidence, that the disabled person is in need of the
court’s assistance. This second inquiry is also not supported by clear and convincing
evidence in the present case.

As stated above, Dr. Catanese’s report does not comply with Tenn. Code Ann. § 34-3-
105 and therefore, the trial court should not have considered this report. Accordingly, we did
not consider this report in determining whether clear and convincing evidence existed upon
which the trial court could conclude that Dr. Todd was disabled and in the need of the court’s
assistance.

We have reviewed Dr. Parkhurst’s report, which does comply with the statutory
requirements. Dr. Parkhurst opined that Dr. Todd’s prognosis is one of “gradual, progressive
decline;” however, Dr. Parkhurst made no findings concerning the specifics, or degree, of
Dr. Todd’s cognitive decline at that time, other than to opine that he was in need of
supervision. Because Dr. Todd’s prognosis is one of gradual decline, there is some question
as to when, if ever, Dr. Todd’s functioning would (or had) diminished to the point of
needing a conservator. In short, Dr. Parkhurst’s report does not clearly and convincingly
support a finding that Dr. Todd was in immediate need of the court’s intercession.

Likewise, the testimonies of Mr. Buhran and Ms. Corn do not bolster the doctor’s
report to such a degree as to satisfy the stringent clear and convincing standard. Ms. Corn’s
observation that Dr. Todd was agitated is not sufficient to prove diminished capacity. In fact,
because conservatorship proceedings are often highly contested, agitation on the part of the
respondent may be more the norm, than proof of infirmity. The fact that Dr. Todd was able
to explain the cause of his agitation, and was able to inform Ms. Corn that he did not wish
to have a conservator, would seem to indicate that his faculties were intact at that time.

Perhaps more important is the testimony of Mr. Buhran that Dr. Todd had made some
plans concerning his estate. Without development of the record concerning the exact nature
of the documents executed by Dr. Todd, it is impossible to determine whether he is in need
of the court’s assistance. The trial court has an affirmative duty to impose the least restrictive
alternative upon the disabled person. Tenn. Code Ann. § 34-1-127. Although the court
specifically found that the appointment of a conservator was the least restrictive alternative
for Dr. Todd, without the specifics of Dr. Todd’s estate planning in the record, there is no

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basis upon which the court could have reached this determination. In short, Dr. Todd could
have executed documents sufficient to preserve his interests, which documents would have
negated the need for a conservator. However, without these documents or at least testimony
concerning the nature of the documents, that determination cannot be made.

Our conclusion that, in the absence of clear and convincing evidence that Dr. Todd
was presently in need of a conservator, Ms. Justice failed to meet her burden of proof to
establish the need for court intervention, mandates a remand of this matter for further
hearing. Based on this conclusion, all other issues are pretermitted.

For the foregoing reasons, we vacate the order of the trial court, and remand for such
further proceedings as may be necessary and consistent with this opinion. Costs of this
appeal are assessed to the Appellee Tonya Todd Justice, for which execution may enter if
necessary.

_________________________________
J. STEVEN STAFFORD, JUDGE

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