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. STEVEN STAFFORD,J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and DAVID R. FARMER, 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. Dr. Todd suffers from Alzheimer’s. On July 13, 2009, Ms. Justice filed a

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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.

 There is some confusion in the record as to whether Ms. Bean and Dr. Todd were married. The 1

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’sfees. 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. On October 8, 2009, Dr. Todd filed an objection to the

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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.

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 “cohealthcare 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 thissubject 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.” Clear and convincing evidence is evidence that “eliminates all

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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.

The term “fiduciary” refers to “a guardian, co-guardian, conservator or co-conservator.” Tenn.

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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)).

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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

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

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 crossexamination, 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-ofattorney 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 prognosisis 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 notsufficient 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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