News

TBA Resource for Seniors Wins Statewide Award

Legal handbook named best public service project by a Tennessee association

NASHVILLE, July 23, 2014 – For the second consecutive year, the Tennessee Bar Association earned the top public service award from the Tennessee Society of Association Executives. The Legal Handbook for Tennessee Seniors won the Association’s Advance Tennessee Award as the best public service project by an association in the state. The award was presented last week at a luncheon in Nashville.

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Judge: Guardians Not Entitled to Absolute Immunity

Davidson County Circuit Court Judge Hamilton Gayden has ruled that a Hendersonville woman placed in a conservatorship without her knowledge can sue her former public guardian for not acting in her best interests. The decision clears the way for Ginger Franklin to sue her former public guardian Jeanan Stuart, the Tennessean reports. Gayden had previously ruled that Franklin could not sue based on allegations that Stuart mishandled her financial affairs, but found this week that guardians are “not entitled to absolute judicial immunity for [their] alleged actions (or inactions)” and allowed a suit based on "best interest" grounds to proceed.

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BPR Opinion Looks at Disclosure of Client Wills

A formal ethics opinion issued by the Board of Professional Responsibility on June 13 looks at whether a lawyer who represented a testator can refuse to disclose the will prior to the client’s death based on attorney-client privilege or confidentiality. The opinion was requested by an attorney who says it is becoming more common for courts to order wills and other testamentary documents drafted for competent clients be made available to guardians or conservators handling the affairs of the individual after he or she is no longer competent.

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Columns Cover Labor Law, Hospice ... and Golf

In his "The Law at Work" column in the June Tennessee Bar Journal, Ward Phillips writes with co-author Brandon Morrow "that courts have not been shy to award substantial fees and costs to employers who have been required to combat frivolous claims." They look at how courts have been increasingly critical of agencies’ “sue first, ask questions later” strategy. In Monica Franklin's "Senior Moments" column, she helps you and your clients know when to choose Hospice and who pays for it, and she explains the new "Medicare Choices Model." Humor columnist Bill Haltom explores the game of golf -- and why he ended up selling his golf clubs at a yard sale.

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Nashville Mayor Proposes New Conservator Agency

Nashville Mayor Karl Dean has proposed a new Office of Public Guardian to defend the elderly and others who are not able to care for themselves. His budget, released this week, includes $195,000 to establish the office and hire a public guardian and accountant. The office would be the first publicly funded in the state. Guardians typically are paid through fees assessed on individuals receiving the assistance. Davidson County Probate Judge David “Randy” Kennedy praised the move and said he was confident the Metro Council would approve the funding. Dean’s proposal tracks recommendations from a task force Kennedy appointed.

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Hospitals’ Use of Conservatorship Law Questioned

Conservatorship reform, supported by the TBA and signed into law by the governor, has been in effect for 10 months and early reports from judges indicate the law is providing improved guidelines for handling extraordinary cases. One provision, which is just now receiving media attention, is a mechanism for hospitals to use to discharge patients that no longer need the costly care of a major health facility. A report in The Tennessean questions whether the provision is working as intended. TBA Executive Director Allan Ramsaur points out that the law provides a standardized method with extra due process protections for patients, while previously, hospitals had handled such matters on an ad hoc basis.

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6th Circuit Reinstates Age Bias Suit

The 6th Circuit on Friday reversed a Nashville court ruling and reinstated the age discrimination lawsuit James C. Pierson vs. Quad/Graphics Printing Corp., et al. The District Court had granted Quad/Graphics summary judgment dismissing the case, but a three-judge panel of the 6th Circuit unanimously disagreed with the lower court, holding that an employee does not need to meet heightened standard of proof for age discrimination during a reduction in force. Business Insurance has more.

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Divorce, End-of-Life Care and Cybercriminals

In this issue, Helen Rogers and George Spanos outline strategies for the timing of filing for divorce in Tennessee and Eddy R. Smith discusses the painful topic of pregnancy and end-of-life care. If you weren't scared of people stealing your money electronically before, Kathryn Reed Edge's column on cybercriminals will send you running to change all your passwords and tighten your firm security.

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A Time to Be Born and a Time to Die: Pregnancy and End-of-Life Care

“To every thing there is a season, and a time to every purpose under the heaven: A time to be born, and a time to die …”

— Ecclesiastes 3:1-2

Two recent heart-wrenching news stories highlight the struggle between a woman’s constitutional right to refuse medical treatment and the state’s legitimate interest in protecting the life of her baby. The stories also serve as reminders of the importance of advance directives.

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Ex-Conservator Ordered to Pay Abuse Victims

U.S. District Judge Kevin H. Sharp awarded nearly $700,000 to a mentally disabled Clay County couple victimized by sexual and financial abuse for more than six years by a court-appointed conservator Walter M. Strong. "Defendant had complete control over plaintiffs' lives and their money and he used that control for his own needs and evil desires," Sharp wrote in a 12-page order issued Tuesday. The case first came to light last year as the state General Assembly was considering a series of reforms in the state conservatorship laws. Those changes, including provisions to provide additional protections to wards, were approved and went into effect July 1. The Tennessean has the story. 

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Former Public Guardian not Liable for Losses of Ward

Davidson County Circuit Judge Hamilton V. Gayden Jr. has thrown out part of a suit filed against a former public guardian who was removed from her post following multiple questions about her billing practices, the Tennessean reports. The ruling means that former Davidson County public guardian Jeanan Stuart is not liable for losses sustained by Ginger Franklin while Stuart was acting as Franklin’s conservator. Franklin, who lost her condo, car and all her belongings during the conservatorship, said she could not understand the decision. “Everything I owned was gone,” she said. “It just doesn’t make sense.” Gayden said in his letter to attorney Michael Hoskins that he had not yet decided whether to reject a separate claim by Franklin relating to Stuart’s placement of Franklin in a group home, where Franklin has charged she was put to work taking care of other residents.

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Nashville Probate Candidate Withdraws from Race

Just days after filing papers to run for a judicial post, Nashville attorney Rachel Odom has decided to withdraw her challenge to longtime incumbent Probate Judge David “Randy” Kennedy. Odom’s withdrawal virtually ensures that Kennedy, first named to the court in 2004, will serve another term, the Tennessean reports. Odom announced her decision in an email, saying, “after much consideration, I have decided not to run for judge at this time.” She filed an official letter of withdrawal late Monday.

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LAET to Hold Senior Handbook Event Thursday

The first of many events featuring the TBA’s new Legal Handbook for Tennessee Seniors will take place Thursday in Knoxville when Legal Aid of East Tennessee (LAET) holds a training session at the John T. O’Connor Senior Center. The event will begin at 2 p.m. TBA President Cindy Wyrick and Public Education Committee Co-Chair Angelia Nystrom will be joined by representatives from LAET and the Knoxville/Knox County Office on Aging to present the new resource and answer questions. For more information about the event, contact LAET’s Knoxville office at (865) 637-0484. For information on the Handbook, contact TBA Public Education Coordinator Liz Todaro, (615) 383-7421.

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TBA Releases Senior Handbook for Lawyers, Public

The Tennessee Bar Association today released The Legal Handbook for Tennessee Seniors to help Tennesseans better understand federal and state benefits, new health care laws and a wide range of other issues of importance to older citizens. It is available for download on the TBA website and will be the subject of presentations across the state starting this week and continuing during March. TBA members also may use the handbook in counseling their clients and may customize the front page to add their own firm’s logo and branding. In addition, the TBA will offer CLE sessions to equip members to make optimal use of the handbook in their practices.

The handbook, a project of TBA President Cindy Wyrick, was produced by the Public Education Committee and a host of volunteer lawyers under the leadership of Knoxville lawyer Angelia Nystrom. “As difficult as it is to fathom, an average of 7,000 Americans are becoming senior citizens each day,” Wyrick said in announcing release of the handbook. “This trend is expected to continue for years, so it is important that we do something meaningful to assist this rapidly growing, but typically underserved, segment of the population.”

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If You Did It, Flaunt It With a TBJ Announcement

The Tennessee Bar Journal has a new opportunity for lawyers and firms to promote outstanding achievements, new associates, new partners, mergers, awards and any changes within the firm. Now, Professional Announcements are available at special, lower-rate pricing. You can tell more than 12,000 of your peers about your accomplishments by placing an announcement in the Journal. For information or to place an announcement, contact Debbie Taylor at 503-445-2231 or Debbie@llm.com. To have an announcement placed in the April issue, please contact her before Feb. 18.

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TBJ Covers Wage Regulations Act, Social Security

This month in the Tennessee Bar Journal, columnists Edward G. Phillilps and Brandon L. Morrow cover the Wage Regulations Act, Monica Franklin discusses when to apply for Social Security -- and Bill Haltom worries about the possibility of airlines allowing cell phone conversations on board.

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Service Animals, Closely Held Corporations Headline New Issue

Chattanooga lawyer Samuel J. Gowin explains in the new Tennessee Bar Journal the differences among service animals, therapy animals and pets and what that means to your clients. Murfreesboro attorney Josh McCreary details the equities of business dissolution and oppressive conduct in closely held corporations. And don't miss the latest words of wisdom from the students of the Law Launch Project.

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Panel: Elder Abuse Crimes Expected to Grow

At a community hearing yesterday in Memphis, a panel of experts warned that as the country’s population ages, incidents involving adult abuse, neglect or exploitation will continue to increase. Each of the panelists -- Memphis Police Col. Mike Ryall, Shelby County District Attorney General Amy Weirich, University of Memphis law professor Andrew McClurg and assistant commissioner of the state Department of Human Services Pat Wade -- had personal or professional horror stories to relate. Weirich reported that rapes of elderly people in nursing homes were on the rise, while Ryall talked about financial scams and private caretakers that target the elderly. McClurg argued for more education and enforcement saying, “We’ve just done a terrible job protecting our elders. The predators are experts. They’re con artists. These people are professionals. Never underestimate them.” Read more in the Commercial Appeal.

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Memphis Groups Host Workshop for Seniors

The Shelby County Trustee’s office is partnering with Memphis Area Legal Services and the Shelby County Probate Court Clerk to host a workshop series for seniors titled “Home Sweet Home.” The sessions will focus on the tax benefits available to seniors, veterans and the disabled; paying property taxes and the importance of properly transferring real estate to heirs. Following today's program at Orange Mound Senior Center, there will be a session Thursday from 10 a.m. to noon at Frayser/Raleigh Senior Center, and Friday from 10 a.m. to noon at the JK Lewis Senior Center.

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Nashville Lawyer Charged with Theft, Fraud in Conservatorship Cases

Nashville attorney John E. Clemmons was jailed on charges of aggravated perjury, theft and TennCare fraud after turning himself in Friday. The charges stem from his handling of three conservatorships, The Tennessean reports. Court records and interviews show that more than $1 million in assets is unaccounted for and much of it has been tracked back to Clemmons, who also faces a number of civil suits from the families of his former wards. In another case from Rutherford County, Clemmons already has pleaded guilty to stealing more than $60,000 from a retired teacher he was charged with protecting. Sentencing in that case is set for Nov. 18.

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KBA Holds 17th Annual LawTalk Next Week

The Knoxville Bar Association (KBA) will hold its annual LawTalk Program next week. This year, the free educational program will focus on issues of concern to the elderly, including having a will and an estate plan, and understanding legal protections that are available for seniors and their caregivers. Sessions will be held Nov. 15 at the O'Connor Senior Center and Nov. 16 at Fellowship Church. Free parking is available at both locations and materials will be provided. At each location, local lawyers will present information and answer questions from the audience. Pre-registration is not required but appreciated. Register by calling (865) 522-6522 or visiting the KBA online. Download a flyer about the sessions or get answers to frequently asked questions here.

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New Oversight of Conservatorships Proposed

A task force assigned to examine the growing number of conservatorships in Davidson County has concluded there aren’t enough resources to provide adequate oversight and has proposed the creation of a publicly funded Office of the Public Guardian, which would replace the existing, vacant, single public guardian. In a 55-page report made public Friday, the panel cited an increasing caseload of conservatorships in the local court, with the number jumping from 636 in fiscal year 2009 to 1,782 in 2012. The task force was appointed by Probate Judge David “Randy” Kennedy in the wake of the abrupt resignation of the public guardian Jeanan Mills Stuart after a series of Tennessean reports on the fees Stuart charged for a variety of tasks.

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Medicare Terms Still Make a Difference After 'Bagnall' Ruling

In her recent "Senior Moments" column, Knoxville lawyer Monica Franklin details the differences in the Medicare world between the terms "observation" and "admission." The use of one or other of the words can make a huge difference in whether your client will incur extra costs for the hospitalization and whether your client will receive the Medicare benefit to pay for skilled care in a rehabilitation facility. In the column, Franklin references Bagnall v. Sebelius, which at the Journal's press time was pending. Late last month, Judge Michael P. Shea ruled against the plaintiffs and granted the government's motion to dismiss the action.

The plaintiffs' main substantive claim was that observation status violates the Medicare statute because it deprives them of coverage they are entitled to by law. The judge dismissed this claim by relying on a federal appeals court case that held that it is permissible for Medicare to consider someone an inpatient only if she has been formally admitted by a hospital. Franklin notes that the Improving Access to Medicare Coverage Act of 2013 (H.R. 1179), currently in the Subcommittee on Health, provides that a three-day stay in the hospital, regardless of observation or admission status, would allow a Medicare beneficiary to receive benefits to pay for skilled care in a rehabilitation facility.

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Haslam Forms Task Force on Aging

Gov. Bill Haslam has announced the formation of a Task Force on Aging, a group charged with creating a plan to improve the lives and care of older Tennesseans and their families through a collaboration of public, private and nonprofit leaders. He has asked the task force to focus on three areas: promoting healthy aging, creating livable communities and supporting family caregivers. Lipscomb University’s Charla Long, dean of the College of Professional Studies and The School of TransformAging, will chair the 11-member task force. According to the U.S. Census Bureau, more than 14 percent of Tennesseans are 65 years of age or older. Learn more about the group and its members on Chattanoogan.com.

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Lawsuit: Family Says Conservator Stole $300K

The family of Nannie P. Malone of Nashville has filed suit against a former court-appointed conservator, claiming he misappropriated at least $300,000 from the elderly woman’s estate. Malone, who died in 2012, was afflicted with cancer and Alzheimer's disease when the court appointed Nashville lawyer John E. Clemmons to be her conservator. The family alleges that Clemmons put Malone in a nursing home though they wanted her at home, and wrote the first of many checks to himself within two weeks of taking on her care. WSMV has more. Clemmons was suspended a few months ago for collecting more than $50,000 in unauthorized fees from the bank account of another disabled client.

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