### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 1, 200 3 IN RE: MARTH

A BLAN KS MAX WELL, C ONSER VATOR SHIP Appeal from the Chancery Court for Warren County No. 8070 Charles D. Haston, Sr., Chancellor

No. M2002-01654-COA-R3-CV - Filed Septem ber 25, 2003

The n iece of an elderly

woman who suffered a stroke, followed by memory loss and c onfusion , petitioned the court to be appointed as her aunt’s conservator . The trial court granted the petition as well as the conservator’s plan to have her aunt moved to an assisted living environment. There, the woman’s condition improved, and the guard ian ad lite m moved the

court to c onsider w

hether it was advisabl e to revo

ke the co nservat

orship and allow he

r to r eturn to her own home. After a hearin g, the court terminated the conservatorship. The former conservator

appeals , and we a

ffirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R ., and W ILLI AM B. C AIN , JJ., joined.
Thomas O. Bratch

er, McMinnville, Tennesse e, for the appell ant, Dais y Ma xwell. Mary M. Litt le, McMin

nville, Te nnessee , for the

appelle e, Marth a Blank s Maxwell.
OPINION
I. The Facts Eighty-six y

ear old Martha Blanks Maxwell suffered a stroke in December of 2001. After medical treatme

nt, she co ntinued to

suffer from phy sical weakness, dizziness and memory loss. Her niece, Daisy

Maxwell, a ssisted he

r during this diffi cult per

iod, but became

convinced that her aunt could no longe r safely manage her own a

ffairs, or contin

ue to li ve by herself

in her Mc Minnville home.
Alth ough Daisy Maxwell is Martha Maxwell’s niece, she was raised by

Martha Maxwell and her late husband beginning when she was ten days old, a

nd the relationship of the parties was like-2-

mother and daughter. On December 18, 2001, Daisy Maxwell filed a Petition in the Warren County Ch ancery Cour t to be appointed as her aunt’s conservator. The Petition was ac companied by the affida vit of Dr. Timothy

Fisher, who was f

amiliar with Martha

Maxwell’sme dical history and condition, and declared

that it wa s his opinio n that she was a disa

bled per son and un able tomanage her fina ncial af fairs.
Martha Maxwell was served with the Petition, and the court appointed a Guardian ad L item t o protect her interests. See Tenn. Code Ann. § 34-1-107. A hearing on the pro pose d conserv atorship

was conducted by

the Clerk and Master of the Warren County Court on December 21, 2001. He granted the Petition, and issued L etters of Conservatorship to Daisy Maxwell. No one, including Martha Maxwell, questions the need for the conservatorship at that time. The conservator subseque ntly prepared an

inventory of her

ward’s estate, which showed that she had extensive assets, including her home, numerous bank accounts and a large life insurance policy

. Upon a further hearing, the trial cour tordere d that Dai sy M axwell sec ure and f ile a cor porate surety bond in the amount

of $400,000 to secure the performance of her duties as conservator. See Tenn. Code Ann. § 34-1-105(a). The court also appr oved the conservator’s plan to place her aunt in an assisted living facility . Martha Maxwell subsequently beg an living at the McM innville Residential Center. She participa ted in and enjoyed many of the activities at the Center, and experienced

a significant

improveme

nt in her c ondition. A

ll the witne sses ag

reed Ma rtha Maxwe

ll had improved.
As her condition improved, however, Martha Maxwell be gan to e

xpress a de sire toreturn to her own home. She told the Guardian ad Litem that she did not know whether or not she needed a conservator, but that she knew she wanted to go home. On May 23, 2002, the Guardianad Litem filed a Motion on her behalf, asking the court to consider the que stion of her continuing need for a conservator, and whet

her it would be in he

r best i nterest

to reside at the McMinnville Residential Center or to move back into her home place.
The cour t conducted a hearing on June 18, 2002. Beca use of some confusion a bou t sched ulin g, additional testimonyhad to be heard on July 2. Martha

Maxwell te stified on

both date s. Other witnesses were

Daisy Maxwell, her forty-se

ven yea r old son, and the Director of Nursing at the McMinnvill e Residential Care Center. At the conclusion of the proof, the trial court ruled from the bench that the conserv ato rship should be terminated immediately, with all asse ts under the conservator’s control to be immediately returned.
Martha Maxwell’s attorney prepa red an Order reflecting

the trial court ’s rul ing, including the immediate

return to Martha Maxwell of "[a]ll books, per sonal pape rs and effects, personalty and other property." The order also stat ed, "[ t]he conse rvator s hall file

her rep ort in ac cordanc e with statute and on approval shall be discharged from her bond." D aisy

Maxwell’sattorne

y r efused t o sign the order because he

believe d that it did

not adequ ately

protect her inte rests.1 We note that Tenn. Code Ann. § 34-1-126 states t hat “[t] he court mus t fi nd by clear and convi ncing e vidence that the respondent is f

ully or partially disabled and in ne ed of as sis tanc e fr om the court befor e a f

iduci ary can be app ointed .” In con tra st, Tenn. Code Ann. § 34-3- 108(a), whi ch deal s wi th t he di scha rge of

a con serva tor, is sil ent as to the st andard of pr oof requir ed for such pro ceed ings. W e mus t presu me this sile nce is p urpo seful and , conse que ntly, the preponde rance of t he evi dence s tandard gen eral ly appli cable to ci vil case s al so applies t o ter minat ion of
con serva torship proceeding s. Th e diffe rence in the ap plicab le burd ens ca n be e xplain ed b y the natu re of a
conse rvat orship. A h eigh tene d st andard is appropri ate for the creat ion of a cons ervatorship becaus e suc h a deci sion
nece ssarily mea ns a limitatio n on the ward ’s freed om o f choic e and a retrac tion of so me b asic righ ts from th e ward. Suc h (con tinued ...) -3- On July 5, 2002, Daisy

Maxwell’s attorney filed a Notice of Ap peal, a M oti on to Stay the court’s Order pending the result of the appeal, and a Motion to Alter or Amend the Judgment. The Motion to Alter or Amend asked the court to restore any funds withdrawn from the conserv atorship accoun ts to the conservator’s control. On the same day , Martha Maxwell’s attorney filed a Motion for Contempt, alleging that the conservator had re fused to comply with the orders of the court regarding the retur

n of all of the ward’s assets.
On July 12, the court held the final hear ing in this matter, during which all pending motions were considered. The court denied the request for a stay, as we

ll as the motion to alter

or amend the judgmen t. It did however, order

that $10,000 be dep osit ed with the Clerk and

Master, for him to hold pending the final account ing, an d to use for settlement of any claims arising against the Conservatorship. In light of the cour t’s actio n, the wa

rd’s atto rney voluntar ily non-suited his motion for contempt. II. A Question of Capacity
The former conservator

argues that the

trial court erred in finding that Ms. Martha no longe r needed a conser vator and that she

was comp ete nt to m anage her own affa irs and live in her own home. She also contends that the trial court violat ed the co nse rvatorship statutes by orde ring the immediate

releas e of the ward’s assets before an ac counting could be made. We will deal with the question o f capacity f

irst. By statute, a conservator

may be discharged and the conser vatorship terminated if the court determines the ward

is no long er a disa

bled per son or tha

t it is in the best interests of the disabled person that

the conservatorship be terminated. Tenn. Code Ann. § 43-3-108(a). A disabled person is defined as any

adult “determined by

the court to be in need of partial or full supervision, protection and as sis tance by r

eason of mental illness, physica l illness or injury, developmental disability or other mental or

phy si cal incapa city .” Tenn. Code Ann. § 34-1-10 1(7). Sta ted other wise, to terminat e a conser vatorshi p, the tria l court mus tfind that "the ward is capable of managing his own affairs and estate." State ex rel McCormick v. Burson, 894 S.W.2d 739, 745. (Tenn. Ct. App. 1994). Review of this finding of f act is g overned by Rule 13( d) Tenn. R. App. P. See Tate v. Au lt, 771 S.W.2d 416, 419 ( Tenn. Ct. A pp. 1989) . Under Ru

le 13(d), a presumpt

ion of cor

rectne ss accompanies the trial court’s findi ngs of fac t, which will not be reversed on appeal unless the evidence preponderates otherwise. 11 (.. .cont inu ed) is not the case when the qu estion u nde r review is the term ination o f the con serva torship . Th e Leg islature d eclined to declare the clear and convincing s tandard applicable to proceedings for the dischar ge o f a conservato r, and we also decline to do so . We note that a numb er of states emplo y different st and ards for creating and terminating a
con serva torship and that the preponder ance of t he evidenc e s tan dard is commonly used to decide whether a con serva torship shoul d be ter minat ed. Addit ional ly , the Unif orm Guardi ansh ip an d Protec ti ve Proce eding s Act (1997) § 31 8 cmt., 8A U.L.A. 1 74 (Su pp. 20 03) states:

Although clear

and co nvincing eviden ce is required to establish a guardi anshi p, the petit ioner need only present a prima f acie case for termi nation [of t he guard ia ns hi p]

. On ce the pet iti oner has mad e out a prima facie ca se, the b urde n then sh ifts to the pa rty opposi ng t he pet it ion to es tabl ish by clearand conv inci ng evi dence t hat conti nuat ion of

the guardianship is in the best interes t of the ward. -4- The conservator arg ues that both the medical proof and Martha Maxwell’s own testimony show that she is incapable of handling her own affairs or living on he r own. But it appears to us that the medical p

roof hasnot been s ufficie

ntly developed to pe rm it a c on cl us iv e f in di ng as to ca pa ci ty. The proof includes the May 29, 2002 signed affidavit of Dr. Timothy Fisher, which contains no new informat ion. The a

ffidavit is identic al inlanguage to the affidavit of December 18, 2001 that was used to support

the initia l petition f

or conse rvators hip, inclu ding his statement that "I recommend that a Conservator be appointed."
The aff idavit is accompanied by

numerous pages of medical recor ds fromthe peri ods both before and after the creation of the conser vatorship. Since the ward does not dispute that she needed a conservator in December of 2001, the pre-conservatorship records ar e not probative of her current condition , but they

do crea te a cont ext for the

more re cent re cords.
These reveal a urinary

infection in February

of 2002, whic

h testimony

establish ed can c ause confusion, dizziness and a fall o n March 4 , numerou s lab tests , and an MRI of the brain. The conservator

lists the MR

I finding s in her brief: moderate supratentorial atrophy , mild cerebral at ro ph y, basal ganglia hemorrhage of left basal gang lia and meningioma in right frontal region. Ob vi ou sl y, without further explanation or interpretation by an expe rt wit ness, such findi ngs are of very little help to the court in d etermining Mart

ha Maxwell ’s ability

to function. More relevant are the doctor’s findings of "probable Alzheimer’s de mentia" and memory

loss. But the most useful evidence as to the severity of these conditions comes from the testimony of Martha Maxwell herse lf, and of Kay

Grider, Director of Nursing at the McMinnville Residential Care Center.
As we indicated above, t he trial cou rt heard the testimony of Martha Maxwell on two occasions fourteen day s apart. On both o ccasions, s he was oriented to time and place, knew the purpose of the hearings, and was c onsistent in expressing her desire to live in her own home. She also showed some lapses of memory , every

one of wh

ich is listed in th

e conser vator’sbrief. T

hese included givin g the wr ong name for the resid ential ce nter in wh

ich she liv ed during

her firs t appearance

(although she corrected the e rror in her second appearanc e), forgetting the number (but notthe stree

t name) o f her hom

e addre ss, naming Daisy

Maxwell as her next of kin instead of her sister, and forgettingthe names of doctors who had examined her, people in the nursing home, and long-time neighbors. She herself admitted s he has pr

oblems re membering names
.-5-

He r memory problemswill undoubtedly make it mor

e difficult for Ma

rtha Maxwe

ll t o function effec tively . But her testimony

demonstr

ated a r ealis tic under st anding of her own limitations

. She knew she wou ld be needing some help, and she was awa re of the resources that were availab le to her . She test ified th at her financial assets were sufficie nt to enable her to hire sitters to stay

with her a

round the clock. She also knew that her nieces and nephews wer e willing to keep tabs on her, and would fill in if her sitters didn’t come.
At the hearing of July 2, she voluntarily surrende red her driver’s license to the court, declar ed that she would no longer drive her car, and revealed that since the e arlier hearing she had spoke

n to four potential sitters and discussed payment terms with them. She testified that she would rely on her lo ng -s ta nd in g r el at io ns hi p w it h F ir st Na ti on al Ba nk if sh e n ee de d a ss is ta nc e w it h h er mo ne y. She also dec lared he

r willingness to get a monitoring device to wear around her nec k to enable her to call for help if she got int

o trouble , and to en

roll in the Sheriff’s check-in sy stemwhere s he would receiv e a daily

phone ca ll to chec k on her st

atus. During the same

hearing , Kay

Grider t estifi ed as to some problems Martha Maxwell was vulnerable to outside the confines of her facility , including the possible unreliability of sitters and the tendenc y of

some deme

ntia suff erers to forget to eat. But

she also testified that Ms. Martha was an independent, strong-willed person, and she affirmed her monthly assessment, prepared

on May 30, 2002, that indicated that Ms. Martha was consistently well-groomed, that she

partic ipated in Bingo and other g

roup act ivities, a lway s voluntee

red to help others , was outgoing and had good body strength for her age

. After hearing all the evidence, the trial court co ncluded t hat Marth a Maxwell w as menta lly and phy sically

capable of managing

her own affairs and living in her own home. We do not believe the ev idenc e prepo nderat es again st th e tria l cour t’s fi ndin g. We note, however, that under Tenn. Code Ann. § 34-3-108 (d) the tr ial cour t’s discr etion is notnecessa

rily limited to a choice between continuing the conservatorship and terminating it. That statute gives t he cou rt the addit ional opti on of m odifying i ts ori gi nal order to meet the altered situa tion of the ward. Tennessee Code Annotated § 34-3- 107 sets out the range of the court ’ s authority to specify or limit the powers the c onservator may exercise over the property

of the ward. Ad di ti on al ly, Tenness ee Code A nnotated § 34-1-127 direct s the cour t “to ascertain and impose the least restrictive alternatives upon the disabled person which are consistent with adequate protection of the disabledperson a

nd disabled person’ s proper ty. ” These

statutes could perhaps have been used to shape the resul ts of the p roceed ing in thi s case, with the tri al court fashioning a pla

n to enabl e Martha Maxwell to live in her own home and manage some of her own affairs, while still receiving someof the protections afforded by a conserv atorship . Howeve r, the tri al judge

chose to t

erminate the conservatorship. We view the statutes as giving the trial court broad discretion in fashioning the most ap pr op ri at e r em ed y. In light of the facts of this case, we cannot say that the trial court abused its discretion.-6- III. The Return of the Assets
Tenn. Code Ann. § 34-3-108(e) sets out the procedure for dealing with the property of the ward after the termination of a conserva torship: (e) When the disabled person dies or the court earlier determines a

conservator is no longer needed and issues an order terminating the conservators hip, the conserv atorship

shall ter minate. Wit

hin one hundred tw enty

(120) da ys a fter the date the conservatorship terminates, the conser va tor shall file a preliminary final accounting with the c ourt, whic h shall account for all assets, receipts and disburse ments from the date

of the la st accou

nting unt il the date the conse rvators hip termin ate s, and shall detail the amount of the final distribution to close the conservatorship. If no objections have bee n filed to the clerk's report on the preliminary final a

ccounting within thirty (30) days from the date the clerk's report is filed, the conservator shall distribute the remaining assets...
As we noted above, the trial court’s order terminating the conserv atorship

also directed the conservator

to file her report in accordance with the above statute. The conservator arg ues, however, that the judge was in violation of state law , becau se he ord

ered the immediate

return to Ms. Maxwell of all funds in the hands of the conservator, and that Tenn. Code Ann. § 34-3-108(e) requires that the conservator retain all funds until thefinal ac counting is complet

ed and a pproved . It a

ppears t o us, however, that a fair reading of the above statute does not support the conservator’s arg ument that the conservator was entitled to retain all of the ward’s assets for an additional 120 day s. The statute clearly sa ys the conserva

torship shall terminate upon the court’s order.
The trial judge found that

Martha Maxwell would need access to her money in order to meet the obligations that accompanied the termination of her conser vatorship and her return home. The judge concluded that

it was unreasonable to make an 86year old woma n wait 120 days bef

ore she could reclaim what was rightfully hers, and ordered the immediate return of a ll her assets.
We note that during the hearing of July 12, 2002, the trial court heard a r eport as to the progre ss Martha M axwell had made afte r her adjustment to the move home and the debts the conservator

might still be legally

responsible for. The conservator’s attorney was reluctant to give an estimate of the amount outstanding, but he conceded tha t a sum less t

han $100, 000 would probably be suffi cient to c over all

obligat ions.
The ward’s attorney stated tha t the assisted living center had been paid every month, and that only five days’ w orth (at $77 a day) r emained unpaid. Martha Maxwell was seen by several doctors during the conservatorship, but there is no evidence in the record of any major medical procedures she underwent during that time, other than an MRI of the

head. It is unclear whe

ther any pa

yment has been made for medical e

xpenses.-7-

The trial judge ordered Ms. Martha’s attorne y to deposit $10,000 with the court to cover a ny remaining obligations of the conservator. Tenn. Code Ann. § 3 4-1-104(c ) authorizes such a procedurefor dea

ling with conservatorship assets under circumstances similar to those present here. Tenn. Code Ann. § 34-1-12 1(a) g ives the c ourt discretion to w aive any require ments set o

ut in chapters 2 and 3 of Title 34, clearly including Tenn. Code Ann. § 34-3-108, if such waiver i s in the best interest of

the ward. To the extent Tenn. Code Ann. § 34-3-108(e) can be read to place a limitation on the return of a ward’s assets upon termination of a conse rvatorship, which we do not think it does, the trial c ourt had d iscretio n to order

the immedi atereturn. We find no abuse of that discretion. It appears to us that the j udge was attempting to balance the r ights of the former ward with the conservator’s possible need to be protected fr om creditors of the conservatorship estate.
We note that

the ward ’s attorney

stated tha t Martha M axwell"has never welched on a debt," and that "[s]he’ll pay the bills if they give her the bills." I

f a question arises as to attorn ey fee s or court costs, these have to be approved by t he trial court in any case. See Tenn. Code Ann. § 34-4-114. Finally, if the amount deposited is insuffic ient to satisfy obligat ions leg itimately

incurred for the benefit of the ward, the conservator w ould be ent it led to indemnification from her former ward. In sum, it appears to us that the trial court’s distribution of the assets was not in violation of state law, and was eminently reasonable.
IV. Conclusion
The order of the trial court is affirmed. Remand this cause to the Chanc ery Courtof Warren County for further procee dings co nsistent w ith this opin ion. Tax the

costs on a ppeal to t he appellant.

___________________________________ PATRICIA J. COTTREL L, JUDGE