The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Now That We’ve Got It, What Does It Do For Us?

You are a Tennessee lawyer and your Tennessee client, Ms. Gooddaughter, is sitting in your office along with her 85-year-old father, Mr. Oldman. She has just returned from visiting him at his home in Alabama, where he has been living by himself since his wife died five years ago. She has brought him back with her because his doctor has told her that he is in the early stages of Alzheimer’s disease and needs someone to take care of him and to help him keep up with his finances.

She has looked at his bank account statements, and from what she has seen there, she believes that he is being taken advantage of by the woman who comes in to clean the house. She wants him to stay in Tennessee and live with her, but he has told her he wants to stay put in Alabama because all his friends are there. Although she doesn’t want the situation to become adversarial, she is willing to file for a conservatorship[1] if that is what it takes to keep her father from being exploited. You start to tell her that Tenn. Code Ann. §34-3-101 requires a conservatorship to be filed in the “county of residence” of the “alleged disabled person”; Tennessee courts will not have jurisdiction over her father because he is a resident of Alabama. Then you remember that the Tennessee legislature recently passed the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act,[2] (hereafter UAGPPJA). What does the UAGPPJA do? Does it confer jurisdiction on Tennessee courts in a case like this? If not, can a conservatorship be filed in Alabama[3] and then transferred to Tennessee? In the alternative, is there a way that Ms. Gooddaughter can be appointed conservator of her father in Alabama and have her authority be recognized in Tennessee without the necessity of a transfer?

It may be helpful to consider the broader context that created the situation faced by Mr. Oldman and his daughter. The combination of a growing elderly population, increasing mobility, and the resultant dispersion of family members has yielded a significant proliferation of interstate jurisdictional issues involving older persons in need of assistance in managing their affairs. The most dramatic arise out of incidents involving what has been termed “granny snatching,” where an older person is involuntarily transported across state lines for purposes of obtaining a guardianship or conservatorship as part of a family feud over caregiving.[4] The case of Lillian Glasser is illustrative.[5] Owning a net worth of $25 million, the 84-year-old Mrs. Glasser, who was vacationing in Florida, was persuaded by her daughter to come to Texas for a two-week “visit” before returning to her home state of New Jersey.[6] Acting as her agent under a durable power of attorney, Mrs. Glasser’s daughter proceeded to take charge of her mother’s fortune and took her mother to see a local doctor who determined Mrs. Glasser was incapacitated and admitted her to a psychiatric ward. Expecting that her mother might attempt to revoke the power of attorney, the daughter then proceeded to file a petition in the Texas probate court for appointment as her mother’s conservator.[7] In the meantime, Mrs. Glasser’s friends and family in New Jersey had filed their own guardianship action in a New Jersey probate court.[8] The daughter’s actions were reported to the New Jersey Department of Adult Protective Services, which intervened in the guardianship action there on Mrs. Glasser’s behalf, alleging that she had been abducted and was being held against her will.[9] The Texas court, after initially accepting jurisdiction and granting the daughter’s request for appointment as her mother’s temporary guardian, appointed an attorney ad litem to represent Mrs. Glasser, and finally, after two years of proceedings, wound up ceding jurisdiction to New Jersey.[10]

The cost of this contentious interstate dispute was astronomical, with legal fees exceeding $2 million spent just to determine the forum in which the case should proceed.[11] And, once the issue of jurisdiction is settled, enforcement of court orders and management of property across state lines may continue to be problematic.[12] Although usually less turbulent than situations involving original jurisdiction, the occasions where a guardianship or conservatorship must be transferred from one state to another to accommodate the employment of the conservator or the medical needs of the ward often require filing of another petition for guardianship or conservatorship in the new jurisdiction and entail time-consuming and expensive duplication of proceedings already conducted in the court having original jurisdiction.[13] Courts involved in these disputes have been without a sufficient framework to deal with such issues fairly, consistently, and expeditiously.[14]

Elder law practitioners nationwide sought to remedy this for well over a decade, finally culminating in a recommendation issued by the National Academy of Elder Law Attorneys, the National Guardianship Association and the National College of Probate Judges to the National Conference of Commissioners on Uniform State Laws for drafting of a uniform act that would alleviate this interstate jurisdictional quandary.[15] This culminated in the drafting of the model UAGPPJA in 2007.[16] At present, the UAGPPJA has been adopted in 20 jurisdictions,[17] with the statutory intention of facilitating interstate communication and cooperation between courts in matters involving adult guardianship and adult protective services.18 Tennessee’s version of the UAGPPJA went into effect on Jan. 1, 2011.[19] This article will discuss the types of problems that the UAGPPJA is intended to address and attempt to outline how the statute works to address them.

Returning to Ms. Gooddaughter’s dilemma, a Tennessee court does not have jurisdiction in a conservatorship matter under normal circumstances unless the respondent resides in Tennessee. The question of what constituted “residence” for purposes of a conservatorship petition was first addressed in In re Conservatorship of Clayton v. Clayton.[20] Although the term “granny-snatching” was not explicitly used, the Clayton case involved a classic example of the involuntary removal of an elderly person from one jurisdiction to another, albeit by a concerned and well-meaning son, who happened to live in Tennessee. The elderly Lois Clayton was a resident of Florida and lived in the same house with her stepdaughter, who was her agent under a financial durable power of attorney. Ms. Clayton developed Alzheimer’s disease and the stepdaughter, Ms. Salvatore, filed a petition to be named the guardian of her property, which was granted. Ms. Clayton’s condition continued to worsen, and Ms. Salvatore decided that the best course of action would be to move to Raleigh, North Carolina, where her children lived, and to place Ms. Clayton in a nursing home there, where the family could monitor her care. Ms. Salvatore notified the court of this change in Ms. Clayton’s physical location, but she did not remove Ms. Clayton’s assets from Florida, indicating that she would leave the assets there and continue her management of them under the Florida court’s jurisdiction.

It was at this point that Mr. Clayton, Lois’s son, materialized. He visited his mother in the nursing home in Raleigh on a fairly regular basis and when she broke her hip and had to be hospitalized, he visited her and remained in touch with her as her convalescence in a rehabilitation facility progressed. Mr. Clayton became increasingly worried when the caretakers told him that his mother was not eating and that she was not doing well with her therapy. On Jan. 2, 1993, he drove to North Carolina to visit his mother, checked her out from the nursing home and took her back to Tennessee with him, without a word to his stepsister concerning what he intended to do. Once he got there, he filed a petition for appointment as his mother’s conservator in the Probate Court of Rutherford County.

How was he able to do this? If Tennessee law only confers jurisdiction if the ward is a resident of the state, wasn’t it clear that Ms. Clayton was a resident of Florida and not of Tennessee? Well, not exactly. By the time Mr. Clayton filed the petition, Ms. Clayton was residing in a nursing home in Tennessee, and that is what he declared on the face of the petition. He also represented that he was his mother’s “only” child and he did not disclose to the Tennessee court that his stepsister had already been appointed as his mother’s guardian by a court in Florida. These facts were discovered by the guardian ad litem, however, and while the Rutherford County Probate Court appointed Mr. Clayton to act as his mother’s conservator, it also directed him to intervene in the Florida proceedings so that all of Ms. Clayton’s affairs could be brought to Tennessee.[21] Mr. Clayton did so, asking the Florida court to terminate the guardianship and to require Ms. Salvatore to render an accounting. That, of course, is when the proverbial fat hit the fan. Ms. Salvatore responded by intervening in the Tennessee proceedings, demanding that her prior appointment be given recognition,[22] that the Tennessee proceedings be terminated, and that Mr. Clayton be required to render an accounting. And, after due consideration of all the facts, that is precisely what the Tennessee court did. Specifically, the probate court found that it lacked jurisdiction, because Ms. Clayton was not a resident of Tennessee; the Court of Appeals both affirmed this finding and further held that even if Ms. Clayton HAD been a resident of Tennessee, exercise of jurisdiction by the Rutherford County Probate Court would have been inappropriate because a guardianship proceeding was already in effect in Florida.[23]

What if these same facts had occurred after Jan. 1, 2011, the effective date of the UAGPPJA? Rather than looking to residence or domicile, the new law provides that in an interstate matter, a Tennessee court has jurisdiction to appoint a conservator under four basic conditions: 1) Tennessee is the respondent’s “home state”; 2) Tennessee has a “significant connection” with the respondent, even if not the respondent’s home state (and certain other conditions are met); 3) Tennessee is the “more appropriate forum,” even if not the home state or a state with “significant connection”; or 4) there are grounds to exercise “special jurisdiction.”[24]

Would Tennessee be Lois Clayton’s home state? “Home state” is defined under the UAGPPJA to be “the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months” immediately prior to the filing of a petition for conservatorship.[25] Where the respondent has resided in more than one state during the six months immediately preceding the filing of the petition, the home state is the state where the respondent last resided for at least six consecutive months, so long as the residence period expired within the six-month period immediately before the filing. Thus, in Ms. Clayton’s case, in the six months immediately preceding her son’s filing of a petition for conservatorship in the Rutherford County Probate Court, she had continuously resided in Raleigh, North Carolina, for all but one week, when she was moved to Tennessee. Under these facts, Tennessee would not be Lois Clayton’s home state, and the court could not exercise jurisdiction on that basis.
Would Tennessee have “significant connection” to Lois Clayton? In determining whether a “significant connection” exists, the court is to consider the following factors: a) where the respondent’s family or other persons live who must receive notice of the conservatorship; b) the length of time that the respondent lived in that state and how long he or she has been absent from it; c) where the respondent’s property is located; and d) other ties that the respondent may have to the state, such as voting registration, filing of tax returns, registration of vehicles, driver’s license, friendships and community ties, and receipt of any benefits or services.[26]

While Tennessee did have some connection to Lois Clayton in that her son resided in Tennessee, the connections elsewhere were dominant. Her stepdaughters lived outside Tennessee, she herself had only lived in Tennessee a week, all her property was located in Florida, and she had been receiving benefits and services in North Carolina. One can only assume that any of the other indicia of connection (registrations and social ties, etc.) would have been elsewhere as well, most probably in Florida. Given these facts, it would be difficult to imagine that a court would find Tennessee to have a significant connection to this respondent.

Nevertheless, even in the absence of a finding that Tennessee was either the home state of the respondent or had a significant connection to the respondent, jurisdiction might still be exercised if the court found Tennessee to be the “appropriate forum” or that there were special circumstances warranting the exercise of emergency jurisdiction. However, in this case, because jurisdiction had in fact already been exercised over the respondent by the court in Florida, the criteria for a finding that Tennessee would be the “appropriate forum” could not be met.[27] In addition, the UAGPPJA provides that once a court has exercised jurisdiction by appointing a conservator or guardian or has issued a protective order, that same court retains “exclusive and continuing jurisdiction” over the respondent until terminated by order of that court.[28] The only exception to this would be in the case of intervention by Adult Protective Services should there be allegations of elder physical or financial abuse[29] or the exercise of other special emergency jurisdiction for a limited period.[30] According to the statement of facts, Ms. Clayton’s son’s precipitous actions were allegedly taken due to his concern about the quality of care she was receiving in the North Carolina nursing home. The Clayton court found the evidence presented on this issue to be insufficient to justify “immediate judicial intervention,”[31] but had this concern been better demonstrated to the Tennessee court, with proof provided in the form of testimony from a doctor, would that have justified the exercise of special emergency jurisdiction under the new law?

Possibly, but the utility of such an appointment would be short-lived, lasting for a maximum of 90 days and subject to stay and dismissal by request of the Florida court, which, as noted above, had already exercised jurisdiction and appointed a guardian for Ms. Clayton.[32] Given the totality of circumstances, the exercise of jurisdiction in Tennessee would not be in keeping with the UAGPPJA’s statutory purpose of minimizing jurisdictional conflicts and promoting communication and cooperation among courts.[33] This is particularly true when Mr. Clayton under false pretenses forcibly removed his mother from the location where she had been placed by her legally appointed guardian and brought her to a new location without notification to either the guardian or to the court.[34] Considering this unsettling course of action, it is likely that a Tennessee court acting pursuant to the UAGPPJA would either have declined to exercise jurisdiction on the basis of “unjustifiable conduct” or would have limited its exercise of jurisdiction to the issuing of an “appropriate remedy” to ensure the delivery of respondent back into the custody of her lawful guardian.[35]

So where does this leave Ms. Gooddaughter and her father? Employing the jurisdictional analysis under the UAGPPJA, it appears that Alabama is Mr. Oldman’s home state. Thus, Alabama would definitely have jurisdiction for purposes of the filing of a conservatorship, and the good news is that Alabama has enacted the UAGPPJA, which should facilitate transfer of the conservatorship to Tennessee if Ms. Gooddaughter decides she wants to transfer the matter. The UAGPPJA also gives her the option of continuing under the jurisdiction of the Alabama court and registering a certified copy of the Alabama order and her letters of appointment in Tennessee, filing these documents as one would a foreign judgment.[36] The registration procedure would empower Ms. Gooddaughter “to exercise … all powers authorized in the order of appointment.”[37] The downside to registration, as opposed to outright transfer, is that the Alabama court would have “exclusive and continuing jurisdiction” over the conservatorship.[38] Ms. Gooddaughter would have the power to enforce the Alabama court’s orders in Tennessee but would be powerless to alter them. She would continue to be responsible to the Alabama court and would need to retain Alabama counsel for purposes of submitting annual accountings and any other reports that might be required. She would also need to return to Alabama if there was a need to obtain court leave to transact the ward’s property, to amend the financial management plan, or if any additional orders or relief pertaining to the conservatorship was required.[39]

Whether the burden of this ongoing responsibility to an outside state court is greater than the burden of seeking transfer to a court in the conservator’s state of residence would have to be considered on a case-by-case basis. The transfer procedure under the UAGPPJA is a bit cumbersome but is preferable to filing a new petition for conservatorship. Notice must be given to all appropriate persons in the state having original jurisdiction, and if needed or requested by any party, the court would hold a hearing.[40] In order to prevail, the petitioner seeking transfer would need to show the following: 1) the disabled person is physically present in or is expected to move permanently to the new state; 2) proper notice has been given; 3) no objection is made to the transfer, or that any objection does not establish that the move is not in the disabled person’s best interests; and 4) that plans for the disabled person’s care and receipt of services are reasonable and adequate.[41] The transfer process would eliminate any need for re-establishing the grounds for the guardianship or conservatorship, as the court is specifically directed to recognize the “determination of the disabled or protected person’s incapacity and the appointment of the guardian or conservator.”[42] The Tennessee court would be empowered, however, to amend or modify the transferred order as needed to conform with Tennessee state law.[43]

So, if Ms. Gooddaughter is willing to file her conservatorship petition in Alabama, she will be able to move her father to Tennessee and be able to exercise authority as her father’s conservator, either by virtue of registration of the order or by virtue of transfer of the entire proceeding. The bad news, of course, is that Alabama is not a convenient forum for Ms. Gooddaughter, as she lives and works here in Tennessee. Is there any way that she can proceed in Tennessee at the outset?

Under the UAGPPJA, even if a respondent has another home state, Tennessee courts may exercise jurisdiction if Tennessee is a state with significant connection to the respondent and the home state, in this case Alabama, either declines to exercise jurisdiction or Tennessee determines itself to be an appropriate forum before any petition is filed in Alabama asking that state to exercise jurisdiction.[44] In determining whether Tennessee has significant connection to Mr. Oldman, the court will have to weigh mixed factors. His family, which now consists of his daughter, is located here in Tennessee, and there does not appear to be anyone else who would require notice of the proceedings.[45] However, he has only been physically present in the state for a very short period and all his property is located in Alabama. Furthermore, all his other ties, both legal and social, will be connected to Alabama. On the other hand, the alleged financial exploitation provides some basis for asserting that Tennessee would be the most appropriate forum for purposes of protecting Mr. Oldman from further exploitation, as does the consideration that the Tennessee court would be in the best position to monitor the daughter’s performance as conservator. But, the expressed preference of Mr. Oldman himself and the fact that the alleged wrong-doer and the evidence of her wrong-doing are all located in Alabama, may convince the Tennessee court to refrain from initially asserting jurisdiction should Ms. Gooddaughter try to bring a petition for conservatorship of her father in a Tennessee court.[46] Counsel can defensibly advise Ms. Gooddaughter that she has the option to file in Tennessee, so long as the client is fully apprised that grounds do exist to support the Tennessee court’s decision not to accept jurisdiction. Should she decide to proceed in Tennessee first, she must understand that she will risk the expense and delay of having to bring a second action in Alabama in the event that she does not prevail in Tennessee.

As a consequence of your advice, Ms. Gooddaughter leaves your office, intending to return with her father to Alabama for purposes of proceeding with a conservatorship there. On the way, her father suffers a paralyzing stroke and must be hospitalized in Tennessee. Although this would certainly not be good news, it might be a sufficient factor to alter the balance in persuading the Alabama court to decline jurisdiction as Mr. Oldman’s home state, thus clearing the way for a Tennessee court to accept jurisdiction as the most appropriate forum. In any event, it would provide the necessary grounds to enable the Tennessee court to exercise special emergency jurisdiction to empower Ms. Gooddaughter to act as her father’s conservator for a 90-day period.[47] Assuming that the Alabama court declines to exercise jurisdiction, the provisions of the UAGPPJA may be used by the Tennessee court to request that an investigation and evidentiary hearing be held in Alabama to determine the cleaning lady’s involvement in the misappropriation of the funds in Mr. Oldman’s bank account.[48] The Tennessee court may further request release of “medical, financial, criminal or other relevant information,” as well as the taking of testimony and production of a transcript of same.[49] Finally, once the conservatorship order is entered, the provisions of the UAGPPJA would provide for registration of the Tennessee order with the state of Alabama, whereupon the Tennessee order would be entitled to recognition and Ms. Gooddaughter, as conservator, would be empowered to exercise all powers authorized pursuant to the order to the extent allowed by Alabama law.[50]

If the Alabama court determines that it should still exercise initial jurisdiction despite Mr. Oldman’s deteriorating health, the same procedures will allow the Alabama court to request courts in Tennessee to facilitate the taking of testimony and production of evidence necessary to establish the record in Alabama.[51]

In summary, while certainly not a panacea for all the difficulties faced by incapacitated seniors with widely dispersed families, enactment of the UAGPPJA in Tennessee should help to alleviate some of the jurisdictional uncertainty and will broaden the options available, at least in those cases where the other states involved have also enacted the UAGPPJA. Most states require that the respondent at least be physically present in order to exercise jurisdiction, and many, like Tennessee, require that the respondent be a “resident” or domiciled in the state. The UAGPPJA actually provides more nuanced options, with the consideration of both a respondent’s “home state” and of any states which may have a “significant connection” to the respondent and thus may be an “appropriate forum.” The flexibility afforded by these options will allow courts to be more responsive in situations where an incapacitated respondent, although residing in a particular state, may be best served if another state is recognized as the most appropriate forum for the filing of a guardianship or conservatorship petition.

In addition, once jurisdiction is exercised, the UAGPPJA’s clear proclamation of exclusivity and continuing jurisdiction (except where there is a need for adult protective services),[52] should help to eliminate any temptation to abscond with a vulnerable senior for purposes of seeking an alternative forum. Ability to communicate and cooperate in investigations and the gathering of evidence across state lines should also make it easier to prosecute those engaged in identity theft and exploitation of the elderly and incapacitated. And once a guardianship or conservatorship is in place, the UAGPPJA’s creation of registration procedures to allow the guardian or conservator to expeditiously accomplish tasks that require the exercise of authority in another state are of immense benefit.

Finally, the UAGPPJA’s establishment of a simplified process for transfer and acceptance of transferred guardianship or conservatorship matters is long overdue, and will help to eliminate duplication of costs and gaps in administration that inevitably occur when a guardianship or conservatorship case must be closed in one state and then a new petition for guardianship or conservatorship filed in the state to which the ward has moved. The passage of the UAGPPJA in Tennessee thus constitutes a positive recognition that aging and capacity issues cross all state boundaries. 

Notes

  1. In some jurisdictions, the term “guardianship” is used to describe court-appointed administration of an individual’s personal affairs, such as health care decisions, place of abode, etc., while “conservatorship” refers to court-appointed administration of an individual’s financial affairs. Lawrence A. Frolik & Richard L. Kaplan, Elder Law in a Nutshell 236-37 (5th ed. 2010). In Tennessee, the term “guardian” refers to one appointed to provide “partial or full supervision, protection and assistance of the person or property, or both, of a minor” (see Tenn. Code Ann.§34-1-101(10)), while a “conservator” refers to one appointed to provide “partial or full supervision, protection and assistance of the person or property, or both, of a disabled person” (see Tenn. Code Ann.§34-1-101(4)). A “disabled person” is “any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision” (see Tenn. Code Ann. §34-1-101(7)).
  2. Acts 2010, ch. 817; codified at Tenn. Code Ann. §§34-8-101 et seq.
  3. Under the Alabama Uniform Guardianship and Protective Proceedings Act, a “conservator” is defined as a “person who is appointed by a court to manage the estate of a protected person.” Ala. Code §26-2A-20(2). A protected person can be a “minor or other person for whom a conservator has been appointed.” Ala. Code §26-2A-20(20).
  4. George K. Belcher & Stephanie J. Willbanks, “Interstate Guardianship Jurisdiction: A Solution to ‘Granny Snatching,’” 37 Vt. Bar J. 24, 24-25 (Spring 2011); John MacCormack, “Guardianship Case Lets Loose Calls for Reform,” San Antonio Express-News, Mar. 14, 2006, at B01.
  5. Ralph Blumenthal, “A Family Feud Sheds Light on Differences in Probate Practices from State to State,” N.Y. Times, Dec. 28, 2005, at A12.
  6. Id.
  7. In the Guardianship of Lillian Glasser, 297 S.W. 3d 369, 371-72 (Tex. App. 2009).
  8. In the Matter of Lillian Glasser, 2006 WL 510096 at *1 (N.J. Super. Ch. 2006).
  9. Id.
  10. Guardianship of Glasser, supra note 6, at 372.
  11. “Flashback: Lillian Glasser Case Plays Out in Texas and New Jersey Courts,” San Antonio Express-News, Dec. 24, 2009, at A01.
  12. Sally Balch Hurme, “Crossing State Lines: Issues and Solutions in Interstate Guardianships,” 37 Stetson L. Rev. 87, 103-04 (Fall 2007). Something as simple as selling a ward’s property owned in another state may become a major ordeal, as some states require an out-of-state conservator to seek appointment of a local conservator and to submit reports to the local court as well as to the original appointing court. Id. at 105.
  13. Stephen Rauls, “Family Law Guardianship: The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act – A Uniform Solution to an Arkansas Problem,” 33 U. Ark. Little Rock L. Rev. 75 at 88-89 (Fall 2010).
  14. Hurme, supra note 12, at 102-03.
  15. Rauls, supra note 13, at 80.
  16. Unif. Adult Guardianship & Protective Proceedings Jurisdiction Act (2007), 8A U.L.A. 1 (Supp. 2011).
  17. Jurisdictions where the UAGPPJA has been adopted are: Alabama, Alaska, Arizona, Colorado, Delaware, District of Columbia, Iowa, Illinois, Maryland, Minnesota, Montana, Nevada, North Dakota, Oklahoma, Oregon, South Carolina, Tennessee, Utah, Washington and West Virginia.
  18. The fostering of cooperation among states and the creation of an orderly process for both the initial and continuing exercise of jurisdiction are central to the uniform law. Unif. Adult Guardianship & Protective Proceedings Jurisdiction Act, supra note 15, at 3.
  19. Tenn. Code Ann. §34-8-503.
  20. In re Conservatorship of Clayton v. Clayton, 914 S.W.2d 84 (Tenn. Ct. App. 1995).
  21. Id at 88.
  22. Id.
  23. Id. at 92.
  24. Tenn. Code Ann. §34-8-203.
  25. Tenn. Code Ann. §34-8-201(a)(2).
  26. Tenn. Code Ann. §§34-8-201(b)(1) – (4).
  27. Tenn. Code Ann. §34-8-203(3). The statute conditions the exercise of jurisdiction on the basis of “more appropriate forum” upon a finding that the respondent’s home state and all states having significant connection have declined to exercise jurisdiction. Id.
  28. Tenn. Code Ann. §34-8-205.
  29. Tenn. Code Ann. §34-8-202.
  30. Tenn. Code Ann. §§34-8-204(1) – (3).
  31. Clayton, supra note 20, at 91.
  32. Tenn. Code Ann. §34-8-209(2).
  33. Tenn. Code Ann. §§34-8-104 & 105.
  34. Clayton, supra note 20, at 88, 91-92.
  35. Tenn. Code Ann. §34-8-207(a)(1) & (2).
  36. Tenn. Code Ann. §34-8-401.
  37. Tenn. Code Ann. §34-8-402.
  38. Tenn. Code Ann. §34-8-205.
  39. In particular, in the event that health care or other personal decisions must be made for Mr. Oldman, Ms. Gooddaughter would need to return to Alabama to petition for guardianship of her father, as conservators under Alabama law are charged with “administration of property”, while guardians “make decisions regarding the person of an adult.” Compare Ala. Code §26-2B-102(2) with Ala. Code §26-2B-102(4).
  40. Tenn. Code Ann. §§34-8-301(b) & (c).
  41. Tenn. Code Ann. §§34-8-301(a)& (d)(1)-(3).
  42. Tenn. Code Ann. §34-8-302(g).
  43. Tenn. Code Ann. §34-8-302(f).
  44. Tenn. Code Ann. §§34-8-203(2)(A) & (B).
  45. Under Tennessee law, only the person “having care and custody” of the respondent and the respondent’s closest relatives need to receive notice. Tenn. Code Ann. §34-1-106(b). No one currently has care or custody of Mr. Oldman, and the statute restricts listing of relatives for purposes of such notice to the “spouse, child, parent or sibling.” Tenn. Code Ann. §34-3-104(5).
  46. Tenn. Code Ann. §34-8-203(B)(i) – (iii) ; Tenn. Code Ann.§34-8-206(c)(1) –(9).
  47. Tenn. Code Ann. §34-8-201(a)(1) and Tenn. Code Ann.§34-8-204(a)(1).
  48. Tenn. Code Ann. § §34-8-105(a)(1) & (4).
  49. Tenn. Code Ann. §§34-8-105(a)(2), (5) & (7).
  50. Ala. Code §§26-2B-401-403.
  51. Tenn. Code Ann. §34-8-105(b).
  52. Tenn. Code Ann. §34-8-202.

Donna S. Harkness DONNA S. HARKNESS is professor of clinical law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphreys School of Law. She is a National Elder Law Foundation certified elder law attorney and a Tennessee certified elder law specialist.