# FILED
January 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

IN THE MATTER OF THE ) CONSERVATORSHIP OF ) EDWARD LE O GRAY, ) ) EDWARD LE O GRAY, ) Appeal No. ) 01-A-01-9802-CH-00061 Respondent/Appellant, ) ) Robertson Chancery ) No. 13271 VS. ) ) SUSAN POLEN ZIMMERLE, ) ) Petitioner/Appellee. )
APPEALED FROM THE CHAN CERY COUR T OF ROBERTSO N COUNTY AT SPRINGFIELD, TENNESSEE THE HONORABLE CAROL A. CA TALANO, CHANCELLOR
ANGUS GILLIS, III SCHULMAN, LEROY & BENNETT, P.C. 7th Floor, 501 Union Buildi ng Nashville, TN 37219-0676 Attorney for Respondent/Appell ant LISA M. SHERRILL LAW OFFICES OF LARRY D. WILKS 509 West Court Square Springfield, Tennessee 37172 Attorney for Petitioner/Appe llee

AFFIRMED IN PART; REV ERSED IN PA RT;

AND REMANDED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - The trial court appointed a conservator to oversee the financial affairs of a n elderly retired man w ho had suffered two strokes. We reverse the trial cour t because we do not believe the need for a conservator was proven by clear and convincing evidenc

e.
I. Old Age and Physical Decline

Edward Leo Gray su ffered his first stroke in 1 992, when he was seven tyeightyears old and living in Mississippi. His wife of fifty-six years died two years later. Mr. Gray then b

ought a home

in Greenbrier, Tennessee to be close to his daughter, the appellee Susan Zimmerle. He suffered a second stroke in August of 1996, and was admitted to Nashville Memorial Hospital.

Mr. Gray stayedin the hospital ten days,and wasthen transferred to the Rehabilitation Unit at Tennessee Christi an Medical Center. T hough he apparently made progress there, the str oke left him with impaired vision and hearing, and an unsteady

gait. Mr. Gray was discharged from rehab ilitati on after two weeks, w ith prescriptions

fora n umber of medications and a strong recommendation that he obtain physical help at ho me.

He was not happy with the helpers that were s ent to him, and he cancelled their services after three weeks, leavin g Ms. Zimmerle to take up much of the slack. While working as a schoolteacher, she also cleaned her father’s house, did his laundry , and p repared food for him, as the two of them struggled with the dif ficultie s of maintaining his independent l ifestyle in the face of his infir mities. In March of 1997, he reluctantly agr eed to enter the Maybelle C arter Home, an assisted living facility

.- 3 - Mr. Gray stayed at Maybelle Carter onlyeleven days. He compl ained about the food, was not compliant w ith the medication regimen, and he w as unhappy about being unable to watch the financial news there, beca use th e other residents preferred soap oper as. He returned home, but continued to do poor ly there, losing weight and not maintainin g personal hygiene.

Ms. Zimmerle consulted with an at torney , and had a conservatorship petition drawn up. The event that pr eci pitated the filing of the petiti on occurred on June 4, 1 997, when Mr. Gray set out for the Farmers and Mer chants Bank

o n Highway 41 in Gr

eenbrier with the

purpose of cashing in $150,000 worth of CDs, to obtain funds to invest in Compaq Corporation and Dell Computer. During the course of a long career with the Tennessee Valley Authority, Mr. Gray had shrewdly

invested his money, and had accumulated ass ets of over $800,000.

Mr. G ray drove to the bank on his three wheeled elect ric scooter, a n d asked for the funds. He had previousl y told the manager that his str oke had l efthim legally blind, and she was aw

are that he had driven the s cooter to the bank. She was alarmed because of this, and because of his disheveled appearance, and she called the police and Ms. Zimmerle. After Ms. Zimmerle arrived, the police officer took Mr. Gray to Tennessee Christian Medic al Center, wh ere a psychologist, Dr. Jeffrey Bryant, filled out a certificate for involunt ary admission. See

Tenn. Code Ann. § 33-6-103(c).

After admission, Mr. G ra y underwent a mental status examination performed by Dr. James Roberson, a psychiatri st. Dr. Roberson found Mr. Gray t o be “alert an d oriented in all spheres, ” that he was not delusio nal, that his fund o f knowledge was excellent, and that his ability to perform s

erial subtractions w

as intact. D r. Bryant administe red a battery of psychological test s which indicated n o gr os s impairmentand no diagnosable dementia. M r. Gray’s memory and a bility to concentrate were found to be within the average ran ge for individuals of his age. Dr.1 Ms. Zim me rle amended her Petiti on on September 12, 1997, requestingthat she be appoi nted conservator

of her father’s pers on, and that some “non-re lated, neutral,bonded party with fi nancial experience” be appointed as conse rvator ove r financi al matters. - 4 - Bryant recommended that he be rel eased as long as he had a sitter with him eight hours a day. Mr. Gray was di scharged after a p robable cause he aring, twel ve days afterbeing a dmit ted to the Medical Center. A short time afterward, he mov ed to Atlanta to live with his oldest son.
II. Conservatorship Proceedings

On the day after t he incid ent at the bank, Susan Zimmerle fil ed her petition to be appointed as Conservator for the benefit of her father. 1 Attached to the petition was a sworn repor t by Dr. Stephen White, an internist who had examined Mr. Gray within nin ety days of the filing. See Tenn. Code Ann. § 34-13-105(c). D r. White recommended that a conservator be appointed for Mr. Gray,with broad powers over his medical care, financ ial affairs, and living situation. The trial court promptly appoint ed a Guard ian ad Lit em for Mr. Gray.

The Guardian ad Litem visit ed with Mr. Gr

ay while he was still at the hospital. He spoke to the doctors, to all three of Mr . Gray’s children, and to others who had interacted with Mr. Gray. He also participated in five depositions, and spoke to Mr. Gray by tel ephone on September 2, 1997. His report , filed on September 22, 1997, contained much of the same background information as has been stated above. W h ile finding that Mr. Gray could not adequately take care of his physical needs without assistance, the Guardian di d not specifically reco mmend the appointment of a conservator, but stated:

“Mr. Gray is certainly

not insane. He talked to me as a normal person, and he seems to have been doing better now than he has at some

times in the last year.This may be contributable (sic) to the fact that he is cooperating well with his s

on.2 At the hearing, Ms. Zimm erle denied that her father had eve r made this request,or that she would have refused if he had as ked her. - 5 - The Guardian ad Litem added: “There have been allegations of mis handling of Mr. Gray’s funds. This was done during times when Mr. Gray was supposedly in full control of his abilities, accordi ng to Mr. Startup, Mr. Gray

’s longti me friend and ba nker. It seems that a bank or

someone other than the children mi ght be better to handle his property i f the court determine s t hat he needs help in this regar d.
Hearings on the petition took place on September 25 and December 11, 1997. Mr. Gray testified at length during the

December 11 proceedings. He was able t o sum marize his educational, family, medical and employment experience, and to discuss his financial holdings in great detail. When questioned about the incident at the Farmers and Merchants Bank, he stated that he had asked Ms. Zimmerle to take him to the bank severaltimes, and that she had refused because she didn’t want him to cash in the CDs. 2 He was also aware that there was no taxi service in Greenbrier. He therefore decided to take the scooter, but used the back roads to get t o the bank, and was only briefly

on the shoulder of Highw ay 41.

He also stated that he had been doing much better physically and mentally since moving in with hi s son (which was confirmed by testimony of the son, the son’s wife, his other daughter a nd others), and that he did not w ish to have a conservator appointed.

On December 30, 1997 the trial cou rt filed its Finding s of Fact an d Judgmentof the Court. The docum ent summa rized the evidence pr esented, and concluded: A ll t hese facts considered the Court concludes that

Respondentis mental ly compet ent to ha ndle his o wn business affairs but that he is physic ally disabled to the extentthat he cannot logistical ly and prac tically accomplish the reading, writing, listenin g/ hearing, transporting of hi m self, gathering, organ izing and transacting t he busine ss that his various f inancial holdin gs requires.- 6 - Therefore the Court appoints the Union Planter’s National Bank, conservator of the prope rty of the Respondent ...

The Court also ordered that the costs of the proceedings, including the fee of the guardian ad litem, the court costs, and the attorne y fees i ncurred b y the petitioner, be charged against the pr operty of Mr. Gray, pursuant to Tenn. Code Ann. § 34-11-114. This appeal follow ed.
III. Mr. Gray’s Mental Status

The appellant argues that the trial court erred in concluding that Mr. Gray needed a conservator to manage his financial affairs. Theappellee argues to the contrary that the trial court’s order did not go far enough, andthat it should also have appointed a conservator for his person, because Mr. Gray was unable to care for himself, and did not possess the j udgmentnecessary to preserve his health and safety.

We must state at the outset that it is apparent from the record that because of his physical conditi on, Mr. Gray cannot tak e car e of himse lf without assistance. But it is not so apparent that this assist ance mus

t come in

the form of a conservator

to make decisions for him. The a ppellee po ints to some apparently i solated incident s of forg etfuln ess and h ostility as evidence of Mr. Gra y’ s incompetence. More significantly she cites his decision to di scharge the home health aides sent by Tennessee Christian Medical Center, his refusal to take his medic ation at the Maybelle Carter Home, and his decision to dri ve his scooter to the bank, as evidence that his judgment was fundamentally flawed, renderi ng him a danger to his own survival.

We believe, however, that these incidents demonstrate the difficulty of Mr. Gray’s situation. H e found hi mself between a rock and a hard pl ace, and the- 7 -

decisionshe made, however unwise, resulted from the lack of better alternatives, no t from some fundamental def iciency in his mental processes.

Mr. Gray discharged hi s home h ealth aide s because he felt that they didn’t do very much except sit around and watch tel evision, di dn’t coordinate their visits with each other, and that w hen they did help him, they were un w illing to do things in the way he want ed. To a man like Mr. Gray, a ccustomed to being independentall his lif e, it had t o be gallin g to have strangers in his home to meet his needs. When, in his estimation they failed to meet those needs, i t is not surprising that he decided to do without them.

Mr. Gray refused his medications at the Maybelle Carter Home because he thought one of them was causing his diarrhea. Several of the medical expert s testified that diarrhea is a common side-effect of Colchicine, an anti-gout medication that had been prescribed for Mr. Gray. If Dr. White, who prescribed the Colchicine, had informed him of this fact, we beli eve t hat M r. Gray would not ha ve taken the dangerous step of refusing all medications.

Mr. Gray accused the staff at May belle Carter of

trying to poison him by serving him rot ten bol ogna. He later toned dow n this accusation, and said that the food was tainted. Regard less ofthe accuracy of his evaluation of the food, we do not believe that his statement shows him to be suffering from paranoid delusions, as the appellee implies. The court noted that l ike many elderly people, Mr. Gray is not afraid to say what he feels. We believe h e exaggerated his compl aints about the food to express his general discontent with assisted li ving. Si mi larly, we do not take statements that he w

anted to kill hi mself, w

hich he m ade fr

om time to ti me, as presenting a danger of suicide, but as a sign of depression, and a bid for attention.3 W hile they quest ioned Mr. Gray directly, both Dr. Bry ant and Dr. White rel ied upon in formation supplied by Ms. Zimmerle. Dr. Bry ant apparentl

y beli eved that Mr. Gray had barricaded hi mself in the Farmers and Merchants Bank. Such an account of the i ncident at the bank is di rectly

contradict

ed by the testim ony of Willi am Hatfield, the poli ce officer who escorted Mr. Gray to Tennessee Christ ian Medic al Cente r. - 8 -

Mr. Gray had a

right to leave the as

sisted living facil ity when he found that the lifestyle was no t to his liking. We note , however, that sho rtly after leaving, he called his daughter to tell her he was thinking

of returning to Maybelle Carter, because he was afraid that

he might

be placing an intolerabl e burden upon her. Mr. Gray and Ms. Zimmerle met with adminis trators a t Maybelle Carter to discuss his possible return, but the institution was unable to make changes in its procedures to accommodate his needs.

Finally, we do agree that it was dangerous for Mr. Gray to drive his scooter to the Farmers and Merchants Bank on June 4, 1996 . However, we do not believe his decision t

o be so irrational as to

call his competence into question. Like manyinvestors, he was afraid to miss out on a booming market in computer stocks; he felt he had no other way to get to the bank; an d he took the safe st route h e knew.

IV. Medical Evidence and the Conservat orship Statutes

The parties both rely upon ex pert testi mony by medical doctors, psychiatrists

and psychologists. While Dr. White and Dr. Bryant both testified in their depositionsthat Mr. Gray wa s in need ofa con servator, the deposition of Dr. Kirby Pate, a geriatric psychiatr ist who also examined Mr. Gray, was to the con trary. Interest ingly, the clinical findings of these three doctors and of Dr. Roberson were all consistent with each other.

All the experts (and the Guard ian ad Lite m ) agreed that Mr. Gray was substantially in possession of his reasoni ng faculties, but was phys ically impaired as a result of hi s stro ke. Drs. Bryant 3 and White both expressed conce rns about his- 9 -

judgment, and the co nsequen ces that e rrors in jud gment mig ht have up on his saf ety. They als o expressed concerns about the future, in view of the l ikelihood that Mr

. Gray’s condition w

ould worsen over ti me.

I t appears to us that while the trial court’s orde r attempted to addres s these concerns, the remedy it applied exceeded the mandate of the conservatorship statutes. The court correctly found that as of the date of the hearing, Mr. Gray was mentally competent. It also found th at he was quite knowl edgeable about financial matters, and mentally cap able of hand ling h is own business affairs. But it nonetheless appointed a conservator for him, on the ground that his phy sica l limitationsr endered h im incapable of conducting the bus iness that his financial holdings required.

We do not b el ieve

th at th e evi de nce s up po rts t hi s c on cl us io n. We note that af ter th e sale of his home in Greenbrier, the management of Mr. Gray’ s assets will not require travel

or a great deal of physical capacity. Almost all

transactions can be handled by telephone. Though Mr. Gray’s hea ring is diminished, there is evidence in the record that he c o uld hear well enough to carry on a convers

ation over the phone. His vision is poor, but he can read the stock market r eports by using a li ghted magni fying glass , and he follows the market av idly by watchi ng financial shows on television.

No doubt the cour t was co ncerned that Mr. Gray’s absorption in his financial affairs would lea d to a possibl e repetition of an incident li ke the one at the Farmers and Merchants Bank, but with worse consequences for him. The court was
aware that if he had to have a financialconservator appointed, he w ould prefer it to be Union Planters Bank, and thi s was the choice the court made. However

Mr. Gray has chosen to appeal the court’s decision, and we believe he is entitled to have that decision reversed.- 10 - Tenn. Code Ann. § 34-11-126 states that “[t]he court must find by clear and convincing evidence that the respondent is fully or partially disabled and that

the respondentis in need of assistance from the court before a fiduciar y can be appointed.” Further, Tenn. Code Ann. § 34 -11-127 tells us that “[t ]he court has an affirm ative duty to ascertain and impose the least restrictive alter natives upon the disabled person which are consistent with adequate protectio n of the disabled person and the disabled person's property.”

We do not believe that the Petitioner has proven by c lear and convincing evidence that Mr. Gr ay was in need of a fiduciary at the ti me the court rendered judgment. Thus, under the circumstances of this case, the least restricti ve alterna tive was to allow him to manage his own financial affairs.

We are aware that Mr. Gray’s co ndition may have changed for the worse since the hearing, but the law does not authorize the appointment of a cons ervator on the ground of prospective disability. We accordingly reverse the judgment of thetrial court and order that

the conservatorship be dissolved. We also reverse the award of attorney’s fees to Ms. Zimmerle’s attor ney. The fee of the guardian ad litem and the court cos ts below will be paid ou t of the p roperty of Mr. Gray.

V.

The judgment of the trial court is reversed. Remand thi s cause to the Chancery Court of Robertson County for further proceedings c on sistent with this opinion. Tax the costs on appeal to the appellee.

_________________________________ BEN H. CANTRELL,PRESIDING JUDGE, M.S.

CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE