Opinion
Appeal No. 01-A-01-9704-CH-00168.
November 7, 1997
APPEAL FROM THE CHANCERY COURT FOR MAURY COUNTY AT COLUMBIA, TENNESSEE, THE HONORABLE WILLIAM B. CAIN, CHANCELLOR, Maury Chancery No. 95-571.
THOMAS W. HARDIN, Hardin Parkes, Attorney For Intervenor/appellant,
WILLIAM S. FLEMING, Attorney For Petitioners/appellees
L. ROBERT GREFSENG, GUARDIAN AD LITEM FOR RESPONDENT/APPELLEE
REVERSED AND REMANDED
Opinion
This is an appeal by intervenor/appellant, Launita Perdue Greene, from an order of the chancery court appointing her and petitioners/appellees, Juaneese Crumley and Jackie Perdue, as Mr. Perdue's personal coconservators and First Farmers Merchants National Bank ("Farmers") as Mr. Perdue's financial conservator. The facts out of which this matter arose are as follows.
I. Facts and Procedural History
Mr. Perdue has three daughters, Launita Perdue Greene, Juaneese Crumley and Jackie Perdue. Mr. Perdue executed a power of attorney in favor of Ms. Greene and Ms. Crumley in the mid 80's. On 4 December 1992, Mr. Perdue revoked the power of attorney and executed a durable power of attorney pursuant to Tennessee Code Annotated title 34 chapter 6. The durable power of attorney granted Ms. Greene full authority to handle Mr. Perdue's financial affairs, but failed to grant any authority as to medical decisions.
There is conflicting testimony as to why Mr. Perdue revoked the first power of attorney. Ms. Crumley testified that prior to the revocation she had withdrawn approximately $1,700.00 from Mr. Perdue's account. She further stated that she had withdrawn the monies with Mr. Perdue's permission and that the withdrawals constituted an unpaid loan. It was Ms. Greene's contention that Mr. Perdue did not give his permission and revoked the first power of attorney upon learning of the withdrawals.
Ms. Crumley and Ms. Perdue filed a petition for appointment of conservator on 21 September 1995 after Ms. Greene requested Ms. Crumley turn over certain certificates of deposit obtained by Ms. Crumley under the first power of attorney. In the petition, the sisters alleged Mr. Perdue was incapable of handling his own affairs and requested the court appoint them as Mr. Perdue's personal coconservators and Farmers as Mr. Perdue's financial conservator. The court appointed L. Robert Grefseng as guardian ad litem for Mr. Perdue. Ms. Greene filed a petition to intervene which the court granted on 20 October 1995. Ms. Green requested the court appoint her as Mr. Perdue's financial and personal conservator, but alleged that such an appointment was not necessary given the durable power of attorney. She alleged she had been managing Mr. Perdue's property and financial affairs as his attorney-in-fact in a "professional and prudent manner" since the execution of the durable power of attorney in 1992. The guardian ad litem filed a report and answer on 18 October 1995. The guardian concluded Mr. Perdue was in need of a financial and personal conservator.
The court held a hearing on 20 December 1995. Ms. Crumley testified that she is employed as a home health care nurse and that she resides in Columbia, Tennessee. She also stated the sisters did not agree on how to handle Mr. Perdue's personal and financial affairs. Ms. Perdue testified that she resides with Mr. Perdue in Columbia, Tennessee. She further testified that she did not pay any rent, but helped maintain the residence, cooked meals, and cleaned the house. Finally, Ms. Greene testified that she too lived in Columbia, Tennessee. She stated that she visits Mr. Perdue several times a week, does the laundry, goes grocery shopping, takes Mr. Perdue to his doctors' appointments, takes him to visit his sister in Portland, Tennessee, takes him to get his hair cut, and cares for his dog.
The court entered an order on 13 March 1996. The court found that it was in Mr. Perdue's best interest that Farmers handle Mr. Perdue's financial affairs and that the three daughters should be appointed as his personal coconservators. Thereafter, Ms. Greene filed a petition for a new trial or in the alternative to alter or amend. Ms. Greene argued the court failed to follow Tennessee Code Annotated section 34-13-103 and considered evidence outside the record. The guardian ad litem filed a supplemental report on 12 September 1996. The guardian stated that Mr. Perdue identified Ms. Greene as the person he wanted to handle his affairs by pointing out Ms. Greene from a picture of the three sisters and by making a mark next to Ms. Greene's name on a piece of paper asking who Mr. Perdue wanted to handle his business affairs and listing the daughters' names. The court overruled the motion by order entered 25 October 1996.
Thereafter, Ms. Greene filed a timely notice of appeal and presented the following issues: 1) "Whether the trial court erred in failing to follow the statutory priorities and preferences in the appointment of a conservator for Mr. Perdue" and 2) "Whether the trial court erred in basing its decision on knowledge outside the proceeding." We do not address these issues directly as our decision in this case rests on a different contention.
II. Conservatorships
A petitioner in a conservatorship action must prove two facts by clear and convincing evidence. The first fact is the person "is fully or partially disabled," and the second fact is the person is "in need of assistance from the court." Tenn. Code Ann. § 34-11-126 (1996); See Tenn. Code Ann. § 34-11-101(7) (1996) (defining disabled person). In this case, the court appointed a financial conservator and personal coconservators. We address the merits of the court's decision to appoint a financial conservator first.
A. Financial Conservator
It is the opinion of this court that Ms. Crumley and Ms. Perdue failed to establish by clear and convincing evidence that Mr. Perdue was in need of a financial conservator. To explain, the durable power of attorney granted Ms. Greene full authority to act on Mr. Perdue's behalf with respect to any business or financial matter. It is the opinion of this court that it was necessary for Ms. Crumley and Ms. Perdue to produce clear and convincing evidence that the court should not permit Ms. Greene for one reason or another to continue as Mr. Perdue's attorney in fact in order to establish the need for court assistance. For instance, the court could have concluded Mr. Perdue was in need of court assistance had the petitioning sisters established Mr. Perdue was incompetent at the time he executed the durable power of attorney, Ms. Greene obtained the authority through undue influence, Ms. Greene intended to act for the benefit of someone or something other than Mr. Perdue, or Ms. Greene was unable to perform the duties of financial conservator. In this case, however, there is no evidence that Mr. Perdue needed any assistance with his financial affairs other than that provided by Ms. Greene acting as Mr. Perdue's attorney in fact.
B. Personal Coconservators
The parties contend the appropriate standard of review is that found in Rule 13(d) of the Tennessee Rules of Appellate Procedure. Appellate courts, however, may need to apply more than one standard of review when reviewing a lower court's decision appointing a conservator. To explain, a petition for the appointment of a conservator requires the lower court to make legal, factual, and discretionary determinations. Each of these determinations require different standards of review. This court reviews factual determinations pursuant to Rule 13(d) of the Tennessee Rules of Civil Procedure. Thus, factual determination, unlike legal determinations, come to this court accompanied by a presumption of correctness, and this court will not disturb factual determinations unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d) (West 1996). Finally, we review discretionary determinations using an abuse of discretion standard. In this case, the court's determination of Mr. Perdue's best interest and the appropriate conservator is a discretionary determination.
"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.App. 13 Dec. 1994) (quoting In re Rockwell, 673 S.W.2d 512, 516 (Tenn.App. 1983)). When the court decided Rockwell, the statute governing the appointment of a conservator gave the court complete discretion. Today, that statute, Tennessee Code Annotated section 34-13-103, while still discretionary, is more restrictive. To explain, the current statute includes a prioritized list which the earlier statute lacked. Tennessee Code Annotated section 34-13-103 provides:
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(s) of the disabled person; and
(5) Other person(s).
Tenn. Code Ann. § 34-13-103 (1996). The best interest analysis and the fifth choice provide the court with some discretion.
It is the opinion of this court that Ms. Crumley and Ms. Perdue established by clear and convincing evidence that Mr. Perdue was disabled and in need of the court's assistance with respect to the care of his person. As to the need issue, the durable power of attorney does not expressly grant Ms. Greene authority over the person of Mr. Perdue. There is no mechanism in place for the care of Mr. Perdue's person in the event he is disabled. Therefore, it is the opinion of this court that the chancery court correctly decided to appoint a personal conservator for Mr. Perdue.
A durable power of attorney as provided for by title 36, chapter 6, part 1 of Tennessee Code Annotated does not authorize the attorney in fact to make health care decisions. See Tenn. Code Ann. §§ 34-6-108(c)(9), -109 (1996). A person may, however, execute a durable power of attorney for health care which "authorizes an attorney in fact to make health care decisions for the principal." Id. § 34-6-201.
Having concluded a conservator was necessary we turn to the court's decision to appoint all three sisters as coconservators. Pursuant to Tennessee Code Annotated section 34-13-103 the court must make two determinations in order to choose the appropriate conservator. The first determination is what is the best interests of the disabled person, and the second determination is, based on the first determination, who is the appropriate conservator given the prioritized list in the statute. In order to determine the best interests of a disabled person, the court must consider all the relevant facts.
This court's decision that Mr. Perdue did not need a financial conservator thereby retaining Ms. Greene in control of Mr. Perdue's financial affairs altered the facts underlying the best interests analysis. It is very likely that this change in the facts would affect the chancery court's discretionary determination of Mr. Perdue's best interests. As such, any review by this court of the chancery court's discretionary determination would be futile. To explain, in order to review the chancery court's decision to appoint the three sisters we would have to look at the court's decision in light of the facts as they were at the time of the hearing. The more appropriate analysis is to determine Mr. Perdue's best interests in light of the facts as they exist given this court's decision regarding the financial conservator. Nevertheless, if this court were to make such a determination, it would be an initial decision, not a review of the chancery court's determination. Given this predicament, it is the opinion of this court that it is appropriate to remand the case to the chancery court for an initial determination given the facts as they exist as a result of this opinion.
III. Conclusion
It is the opinion of this court that Ms. Crumley and Ms. Perdue failed to establish by clear and convincing evidence that Mr. Perdue needed the assistance of the court with respect to his financial affairs. Thus, the trial court erred in appointing Farmers as Mr. Perdue's financial conservator. Ms. Crumley and Ms. Perdue did, however, prove Mr. Perdue was disabled and in need of assistance with respect to the care of his person. Thus, the trial court correctly decided to appoint a personal conservator. As to the particular appointment, this court's standard of review is abuse of discretion. Given that our decision as to the financial conservator altered the underlying facts of the case, it is this court's opinion that the portion of the chancery court's order appointing the three sisters as Mr. Perdue' personal coconservators should be vacated and remanded for a new determination.
Therefore, it follows that the decision of the chancery court finding Mr. Perdue needed a financial conservator and appointing Farmers as Mr. Perdue's financial conservator is reversed. The portion of the court's order appointing the three sisters as Mr. Perdue's personal coconservators is vacated. The case is remanded to the chancery court to review the facts as they exist as a result of this opinion and to appoint a personal conservator or coconservators. Costs on appeal are taxed against appellees, Juaneese Crumley and Jackie Perdue equally.
________________________________ SAMUEL L. LEWIS, JUDGE
CONCUR:
____________________________________ BEN H. CANTRELL, JUDGE
____________________________________ WILLIAM C. KOCH, JR., JUDGE