# FILED

April 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) Respondent/Appella

nt )

IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT

AT NASHVILLE, TENNESSEE

HONORABLE FRANK G. CLEMENT, JR.,

PROBATE JUDGE

George H. Cate, Jr. 95 White Bridge Road Suite 503, Cavalie

r Building Nashville, TN 3 7205 ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT William Kennerly Burger SunTrust Bank Build

ing, Suite 306 201 E. Main Stree

t, P. O. Box 1969 Nashville, TN 3 7133-1969 ATTORNEY FOR PETITIONER/APPELLEE

AFFIRMED AND REMAND ED

WILLIAM H. INMAN, SENIOR JUDGE CONCUR: HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTIONBEN H. CANTRELL, JUDGE

ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) Respondent/Appella

nt )

O P I N I O N The trial court f

ound the respondent in ne ed of a conservator

and appointed Guardianships and Trusts, Inc. as conservator of her person and her

estate. We affirm

the judgment of

the trial court. Nora Elizabeth McGill [respondent], who is now 83 years of age, has suffere d since birth f rom disa bling cerebra l palsy. She is fu rther d isable d by severe osteoporosis, a pronounced speech impediment which makes communica

tion very diffic

ult, and a hearing de

ficit. She has al so suffered a mild stroke. In 1960 she was determined to be totally disabled for social security disabil

ity purposes. Respondent never m

arried and lived on a

farm with he

r father and mother, who di

ed in 1960 and 1970 respec tively. She ha

s two brothers who now live in Florida, and had a sister who is now deceased. After the death of her parents, responden

t’s sister assiste

d her with grocery

shopping, banking and daily needs. W

hen the sister died in 1988, respondent em ployed live-in housekeepers. He

r family w

as consulted by respondent’s nurses a nd occasionally by her doctors in matters concerning her care. Respondent’s rela

tionships with those w

ho assisted her afte

r the death of her sister were troublesome. Her brothers or her niece [petitioner] we re1 Respondent’s estate consists of i mproved real property, all of which is currentl

y rented, valued at approximatel

y $450,000.00, pl

us CD’s and cash of

approximatel

y $187,000.00. 2 Two close relatives who kept large sums of

cash had been murdere d at home during a r

obbery. contacted various times in 1988 and 1989 with complaints from the nurse that respondent would not take her medications as directed, and she was hospitalized

sever al time s in o ne year for med icati on ad justme nts. H er bro ther, Willi am, petitioned for app ointment of a limited guardi an on December 6, 1989. He testified that the in

itial appointmen

t was at respondent’ s request: “[W]hy Nora had asked me personally if I would get an attorney to try to see what we could do to stop her from - - her signature being valid. So she gave me t

he name of - -

who ended up being the

guardian ad litem - - Mr. Larry Brandon in Murfreesbo ro. He came by to see Nora atthe - - at that time she had been sent to Stones Ri ver Manor in a nursing home. A

nd he advised her that a gua rdianshipwas the only solutionthatshe could have. So she wa nted me to be and I a sked my sister[Nora] at

that time that I

would like somebody

else because of my age to be with m

e. An d so then she decided on my sister [sic - daughter] Elizabeth, that she cou ld be the guardian wi th me. So that was the beginning o f the guardianship in ‘89.” The guardianship apparently went r easonably well

for several y

ears, and respondent was able

to stay at hom

e in her duplex apart

ment on 18 acre s of land in Rutherford County

with a live-in regi stered nurse. Ac cording to the term

s of the guardianship, she

was provided $500.00 each month from her considerable estate for “spending money.” 1 However, the nu rse reported to pet

itioner that: “she [respondent] was being taken to the b ank and that she was writing $500 worth, just all cash money, and that the money was being accumulated at

her residence. A

nd the lady was i

n fear of her andLizzie’s welfare, afraid someone wa s going to break in and

steal i t be cause she was openl y showing people t

hat she had it and counting it out . . .” 2 After her ho spit aliza tion in 19 89, re spon dent was ta ken to a nurs ing h ome in Rutherford County . Later petition er moved respon

dent to a nursing hom

e in Davidson County,

and still later dire

cted that certain o

f respondent’s fr

iends and acquaintances, som

e of whom wer

e member s of The Church Tr

iumphant, not be3 Her attorney at that time, now deceased, also represented one of these acquaintances, and the court remov ed him as respon dent’s co unsel bec ause of th e conflict o f interest.

4 "Disabled per

son” means a

ny person 18 years of

age or older

determin

ed by the c ourt to be

in need of partial or full sup ervision, pro tection and a ssistance by rea son of men tal illness, physical illness o r injury, development

al disabi lity or other me

ntal or physica

l incapa city. T.C.A. § 34-11- 101(7) (1996) allowed to visit her in the nursing home because petitioner believed they were causing discord b etween respondent an d her family. Respondent soon becam

e quite dissatisfied with her circum stances and on June 24, 1991 filed a pe

tition for the term

ination of her guardi

anship. The reported case of McGill v. Hendrix, 913 S.W.2d 184 (T enn. 1995) recounts respondent’s conti

nuous and vigorous litigat ion to that end. 3 The case is now be

fore us on appeal fr

om the decision of

the Probate Court of Davidson Cou

nty, which foun

d that “there i s no question in my mind that a conservators

hip is absolutely ne

cessary for t

he welfare and be

nefit of Ms. McGill .” The tr ial cou rt foun d that t he resp ondent would b e best s erved b y a non-family

conservator and appo

inted “. . . Gua rdianships and Trust

s Inc. as conserva

tor of Ms. McGill with Ms. [Eliza

beth] Hendrix as

stand-by conser

vator in the event, for whatever re

ason, Guardianship s and Trusts should be u nable or unwilling to serve .. . it is the conser vatorship of the person and the estate so that tot

al control of Ms. Mc

Gill shall be in the ha

nds of the conservator, Guardianships and Trusts, Inc.” Review of the find

ings of fact made by the trial court is de novo upon the record of the tria

l court, accompan

ied by a presumption of

the correctness of

the finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d). The court in a conservatorship action must determine two facts by clear and convincing evidenc

e. The first fa

ct is the person “

is fully or part

ially disabled,” 4 and the second fact is the person is “ in need of assistance

from the court.” T.C. A. § 34-11-126 (1996) ; Crumley v. Perdue, No. 01A01-9704-CH00168, LEXIS 774 (Tenn. App.1997).The medical evidence of respondent’s disability is provided by the report

of Dr. J. D. B ryant, who ad vised that respondent h

as a medical hi story of cerebral palsy , hypertension, type II diabetes mellitus, chr onic migraine headache, large

hiatal hernia with

history of esopha

geal stricture, o steoporosis with multiple f

ractures of the dor

sal spine, left hip f

racture, and hist

ory of overdose and misuse of p rescribed medication requ iring hospitali zation. He reported that her di sabilities were m ental and physica

l and that her me

ntal, physical, socia

l and educational sta

tus was fair but her

adaptive behavior a

nd social skills were poor. He opined that since admission to the nursing home her condition has stabilize

d and that she needs co

ntinued close supervis

ion to maintain this condition. Further, he opined that she needs a fiduciary for her physical well-being, to handle her financial affairs, to consent to medical treatment and to consent to relocation. He recommended continued m edical

treatment. Respondent testifie

d that she did not like D

r. Bryant, who is “the house doctor,” and alleg

ed that he forced he

r to undergo exam

ination. However

, she admitted that a

psychiatrist was sent to her room the week before t

he hearing to examine her mental status and that she refused to see him. She also alleged that Dr. E. C. Tolbert, who had been her fam ily doctor for twenty years, had been “blackmailed” by her brother to report that she was disabled. Yet she presented no countervailing m

edical testimo

ny or report by

any doctor that h

ad not previously been considered. Therefore, the unrebutted medical evidence is that respon dent is physica lly and men tally di sabled and nee ds a fid uciary. The second prong of t

he test for appointm

ent of a guardian is t

hat she is in need of assistance from the court. The proof in the record is abundant that respondent is unable to

competently

conduct her own aff

airs. She lived w

ithher parents until the ir deaths; she then ha

d her sister’s as sistance until her de ath; she then had live-in nurses until she went to a nursing home. When the nurses observ ed that she ove r-medica ted her self an d handl ed her fi nances unadvi sedly, they were unable to convince her to do otherwise. She sought help from her brother to invalidate her signature, but when he secured the requested guardianship she ref

used to see any f

amily m embers, all o

f whom she now regards as her ene

mies. She tol

d the nursing home

doctor not to touch her

, and she refused psychiatric examination which, if she were correct about her abilities, mig

ht well have led to a

different result in this case. Indee d, at the hearing in this matter she even refused to answer direct questions from the trial judge: THE COURT: “M s. McGill, I woul d like to know who typed this for you? A: I promised I w ouldn’t tell. THE COURT: You pro mised you w ould not tell? A: Yes. THE COURT: Who did you maketha t

promise to? A: The woman that typed that letter. THE COURT: We ll, I w ould like to know ,

Ms. McGill. I’m orderi

ng you to answer the questi

on. A: I’m sorry. MR. CHRISTI

AN: (her counsel) You have to answer the Court’s question; you must. I know you don’t want

to but Judge Clement runs this Co u rt andif he te lls yo u something he can command y

ou to do it. A: I don’t remember her name.”In this and many other instances, respondent has demonstrated that she

is unable to indep endently determine or act in h er own best interest. We find the evide

nce supports the tria

l court’s finding th

at the respondent is disabled and in need of the court’s assistance. The judgment of the trial court is affirmed a

t the cost of the appe

llant and the case is

remanded.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

___________________________ Henry F. T

odd, Presiding Judge

_________________________ Ben H. Cantrell , Judge