News

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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Don’t Miss the 2013 Elder Law Forum Friday

It's not too late to join 130+ elder law practitioners from across the state at TBA’s Annual Elder Law Forum this Friday at the AT&T Building in Nashville. Get details on topics, speakers, exhibitors and sessions or register online now.

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Conservatorship Victim Wins Suit Against Group Home

A Hendersonville woman who was placed in a conservatorship without her knowledge while recovering from a head injury has won her suit against a group home that made her clean and care for other residents while charging her $850 a month in rent. Circuit Court Judge C.L. Rogers ruled that Ginger Franklin was the victim of “egregious and intentional abuse” while she was confined at a Nashville facility providing care for disabled adults. He awarded her $12,000 for mental anguish and abuse and $11,050 for exploitation. An additional hearing to determine punitive damages is yet to be scheduled. Franklin, who eariler detailed her story during a TBA-sponsored hearing on conservatorship law reform, also has filed suit against her former conservator Jeanan Stuart. That case is pending in Davidson County Circuit Court. The Tennessean has more on the story.

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5th Annual Seniors Clinic on Tap Tomorrow in Memphis

Memphis Area Legal Services, AutoZone and Bass, Berry & Sims PLC will hold the fifth annual pro bono legal clinic for Memphis-area seniors tomorrow from 10 a.m. to noon at Orange Mound Senior Center, 2590 Park Ave. The free clinic offers seniors legal advice and helps in the preparation of wills, advanced care plans and more. Contact Linda Warren Seely at (901) 523-8822 for more information.

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Former Public Guardian’s Shopping Fees Reduced

More than a year after the Davidson County public guardian double-billed a ward to take her on a shopping trip, the judge in the case has ordered a repayment. The trip still cost Marlene Spalding $1,462.50, but now she won’t have to pay twice. The Tennessean exposed the double billing and the cost of the shopping trip. On Monday, Davidson Probate Judge David Randy Kennedy reduced the guardian’s final request for fees to account for the double billing. The guardian has since resigned and 40 open cases have been assigned to new conservators.

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Know Your Bank Fraud History; Punch Up POA Forms

Nashville lawyer Katie Edge writes in the recent Tennessee Bar Journal about Tennessee's famous bank robbers -- with the spotlight on the Butcher brothers and other fraudsters. In her column, Knoxville lawyer Monica Franklin says to avoid the "plain Jane" durable financial power of attorney and gives tips to punch up the forms you use for DPOAs.

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Guardian Challenges Firm’s Fee Waiver Practice

A guardian ad litem appointed to protect the legal interests of an 80-year-old woman is challenging the fee arrangement her relatives signed with the Memphis law firm of Wilkes & McHugh. Although state law caps contingency fees at one-third of the recovery in medical malpractice cases, the firm had the woman’s relatives sign a waiver allowing a fee of up to 40 percent of any recovery, with an extra five percent allowed if the case was decided on appeal. The guardian, Robert Hutton, says he also wants to look into fee arrangements in 21 other medical malpractice cases the firm has filed since January 2009. The firm's lead attorney on the case did not return a telephone call from the Commercial Appeal, but said in court papers that he never intended to use contingency fee agreements to seek excessive fees.

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Judge Removes Public Guardian

Davidson County Probate Judge David Randy Kennedy today permanently suspended Public Guardian Jeanan Mills Stuart, who had come under fire for her billing practices. Stuart, who had held the job for five years, submitted a resignation letter effective in a week, the Tennessean reports. Her letter was forwarded to members of Metro Council along with a letter from Kennedy announcing her termination.

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Opinion: Remove Public Guardian from Office

A recent editorial in the Tennessean urges Davidson County Probate Judge David Randy Kennedy to remove Public Guardian Jeanan Mills Stuart from office, citing reports that she has overbilled clients and charged a lawyer rate for countless tasks that have nothing to do with legal expertise. Kennedy recently removed Stuart from a pending case and said he would not assign others to her until reviewing her conduct.

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Gov. Haslam Signs Conservatorship Bill

Gov. Bill Haslam has signed into law the first major revisions in more than a decade to the state law that governs the process of placing state residents under the control of a court-appointed conservator. The new statute, which will take effect July 1, was the product of a series of hearings held across the state by the TBA. Speaking about the legislation, House sponsor Andrew Farmer, R-Sevierville, said that the “intent of this law is to clarify the process, to make sure people aren’t being taken advantage of.” The Tennessean has the latest developments. TBA members will be able to learn more during a program at the 2013 TBA Convention in Nashville that focuses on changes in the law that came out of the last General Assembly session.

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Legal Aid Lawyer to Receive Duncan Award

Deborah Herzel, a staff attorney with Legal Aid of East Tennessee, has earned this year’s Duncan Award for embodying the legacy of the late U.S. Rep. John J. Duncan Sr., in the “professional” category. The award will be presented by Senior Citizens Information and Referral Service May 2. In this interview with the Metro Pulse, Herzel talks about her work at legal aid.

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Opinion: Conservatorship Reforms Deserve ‘Quick Action’

State legislators are well under way in righting the wrongs in current conservatorship law “thanks to the hard work of the Tennessee Bar Association,” The Tennessean writes in a Sunday editorial. The piece recounts the case of Jewell Tinnon, who lost her house, car and belongings due to the mismanagement of a conservator and highlights the provisions of the legislation under consideration. It ends with final nod to the TBA, which organized a series of public hearings across the state to address conservatorship reform: “We trust that our laws protect us when we cannot. We are glad the Tennessee Bar Association and our General Assembly are making it so.” Last week, the Senate Judiciary Committee unanimously approved SB 555. The House Civil Justice Subcommittee is scheduled to take up the bill this week.

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Judge Replaces Public Guardian as Woman’s Conservator

Probate Judge David Randy Kennedy this week replaced a Davidson County public guardian who had been charging her full hourly fee for legal work regardless of the service she was performing, the Tennessean reports. Court records show that while Jeanan Mills Stuart was serving as conservator of Marlee Spalding she billed $986 to accompany her to a Christmas concert at the Schermerhorn and $1,282 for a shopping trip, the newspaper reported.  Spalding’s sister Myra S. Whitaker will take over as conservator, and Judge Kennedy has said he will not assign any additional cases to Stuart pending a review of the fees she has charged.

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Senate Committee OKs Conservatorship Rewrite

The state Senate Judiciary Committee unanimously approved changes to state law governing conservatorships on Tuesday after hearing a report from the Tennessee Bar Association. The Tennessean reports that TBA legislative counsel Steve Cobb told the panel that a statewide series of hearings showed the ways emergency cases are being handled varies widely and that some cases are disturbing. The Tennessean says the bill will include new provisions under which people can be placed under a conservator’s control without notice and clarify the role of people appointed to serve as a “guardian ad litem” or fact-finder in the cases.

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Justices Say Court Erred in Allowing Evidence

The Tennessee Supreme Court sent a Hamblen County case back to Chancery Court for retrial after ruling that the trial court allowed evidence to be presented that was irrelevant and prejudicial, and saying that allowing the jury to hear it probably affected the verdict. The trial court had invalidated the marriage of Raymond Smallman and Linda Caraway, which had been conducted shortly before Smallman's death, and refused to allow Caraway to have Smallman’s will admitted to probate as his widow. The Chattanoogan has this story. Read Justice Sharon Lee's opinion and Justice William Koch's concurring and dissenting opinion.

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Judge Reviewing Billing Practices of Public Guardian

Davidson County Probate Judge Randy Kennedy is launching a review of the billing practices of the county’s public guardian to see whether she charged excessive fees to the elderly and disabled people she is supposed to protect. According to The Tennessean, Kennedy notified the Metro Council that he also is going to halt new appointments to Jeanan Mills Stuart during the review. The move comes after news of questionable billing practices surfaced last week. As the county guardian, Stuart makes legal, medical and financial decisions for those who are incapacitated by mental or physical illness, addiction or injury when there is no suitable family member or friend to handle such tasks.

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AOC Report Pans Statewide Veterans Court System

Rep. John Ragan, R-Oak Ridge, last year proposed legislation to set up a statewide framework for veterans’ treatment courts, which would operate much like drug courts. During consideration, the bill was amended to instead call for a study of the matter by the Administrative Office of the Courts. The recently released report is far from supportive of the idea, finding that establishing a statewide system in 2013 is “neither necessary or preferable,” Knoxnews.com reports. Instead, the AOC maintains that the “most effective and cost-efficient method of assisting … [veterans] is to permit each judicial district to retain the discretion to address this issue after considering available resources and the needs of the relevant population."

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Conservatorship Hearing in Memphis Tuesday

The second Conservatorship Hearing conducted by the Tennessee Bar Association will take place Tuesday at the University of Memphis Cecil C. Humphreys School of Law’s Historic Courtroom. The hearing will give lawyers, community leaders and citizens a chance to discuss what works with the present conservatorship law and how practice and procedure in conservatorships could be improved. The event is from 1 p.m. to 5 p.m.

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Bradley County Bar to Host Legal Forum

The Bradley County Bar Association and the Cleveland Bradley County Public Library will host a Community Legal Forum on Thursday, Oct. 26 focusing on the legal challenges adult children face in caring for elderly parents. Learn more about the event at the Cleveland Banner.

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Brentwood Man Sentenced in Ponzi Scheme

The former financial advisor and owner of A.D. Vallett & Co. has been sentenced to 120 months in prison for running a Ponzi scheme that defrauded more than 30 victims of over $5 million, BrentwoodHomePage reports. Aaron Vallett pleaded guilty to orchestrating the Ponzi scheme. His sentence was announced as the Department of Justice kicks off a series of investment fraud summits in cities across the country, including Nashville. The event was held at Vanderbilt School of Law this morning.

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Education Program for Seniors Thursday

An education and outreach program will be offered for seniors at noon Thursday in Gruetli-Laager. The event is sponsored by the Legal Aid Society of East Tennessee. For details, contact Charlie McDaniel at (423) 756-4013 x 1113 or cmcdaniel@laet.org. The program is one of more than 40 events planned across the state this month.

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Pikeville Event for Seniors Wednesday

An education and outreach program will be offered for seniors at noon Wednesday in Pikeville. The event will be sponsored by the Legal Aid Society of East Tennessee. For details, contact Charlie McDaniel. See all the events planned for Celebrate Pro Bono Month

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