News

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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Convicted Conservator Disbarred

John E. Clemmons was disbarred on May 5, retroactive to April 2, 2013, the date on which he was temporarily suspended. Clemmons consented to disbarment because he could not successfully defend charges filed against him with the Board of Professional Responsibility alleging that he misappropriated money from several wards for whom he had been appointed conservator, and pled guilty to four counts of theft in amounts over $60,000, aggravated perjury and TennCare fraud. View the BPR notice.

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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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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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Conservator Argues for ‘Absolute Judicial Immunity’

Ginger Franklin, who testified at one of the TBA’s hearings on conservatorship abuses last fall, has sued her former court-appointed conservator Jeanan Stuart, WSMV reports. The court appointed Stuart after Franklin suffered a brain injury in 2008. After Franklin recovered, she found Stuart had allowed her condo to go into foreclosure, liquidated the contents of her home and allowed her car to be towed and sold at auction. In 2010, Franklin won a two-year fight to free herself from the conservatorship. Now, she is suing Stuart in civil court for damages. Stuart's attorney, Bill Hubbard, argued during a motion hearing that Stuart should not be held liable, arguing she has immunity because she was working under the court's direction. "Conservators are entitled to absolute judicial immunity," Hubbard told Circuit Court Judge Hamilton Gayden.

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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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County Considers New Conservatorship Agency

A proposal to create a new agency to oversee conservatorships in Davidson County is gaining support among officials in spite of budget concerns, The Tennessean reports. Metro Council member Walter Hunt, who served on a task force that recommended creation of a new agency, said he will be actively seeking support from council members in the coming months. The task force convened by Probate Judge David “Randy” Kennedy concluded that there were too few resources available for a growing caseload that includes many indigent wards.

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New Laws, Awareness Bring Accountability to Conservatorships

In Nashville this past week, court-appointed conservator Paul Gontarek recommended a criminal investigation be undertaken of his predecessor, now-suspended attorney John E. Clemmons. Gontarek, who replaced Clemmons in four cases, has completed a review of the cases and reports that Clemmons routinely submitted accounting reports that omitted payments made to himself, including more than $370,000 in one case. A review by The Tennessean suggests that the total misappropriated could exceed $1 million. The district attorney's office said it was reviewing the report.

Meanwhile, the head of one of Chattanooga's most distinguished families admitted last week that he drained the accounts and mortgaged the home of his mentally ill sister. The event underscores statistics that exploitation of the elderly and disabled frequently occurs at the hands of those closest to them, The Times Free reports. The paper cites a 2009 study by the National Center on Elder Abuse, which found that family members commit 90 percent of all elder abuse and 34 percent of financial abuse. TBA Executive Director Allan Ramsaur, interviewed for the story, talks about the association’s success in updating state law and helping judges stay informed about conservator issues.

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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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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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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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Tennessean Credits TBA with Conservatorship Reform

The Tennessean’s coverage of the legislature’s final passage of conservatorship reform gives the TBA credit for laying the groundwork for the bill with a series of public hearings across the state on the issue. In the article, Executive Director Allan Ramsaur expresses his appreciation for the opportunity to review the legislation, saying the changes "should bring some clarity to the way the process works." The bill now awaits the governor’s signature.

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Conservatorship Overhaul on Way to Governor’s Desk

The state Senate today gave final unanimous approval to the bill (SB 555/HB 692) sponsored by lawyer legislators Sen. Doug Overbey, R-Maryville, and Rep. Andy Farmer, R-Sevierville, making changes to governing conservatorships after hearing a report from the Tennessee Bar Association. Among the proposed changes, the recommendation establishes a uniform emergency placement process, clarifies the role of guardians ad litem, requires court orders to specify rights being taken away, and calls for more frequent financial reports. The recommendations follow a series of hearings held across the state at which members of the TBA Special Committee on Conservatorship Practice and Procedure, chaired by Jackson lawyer Pam Wright, heard from witnesses who lost all of their assets as victims of conservatorships. The legislation will be one of the topics in the Legislative Update CLE at the TBA Convention in Nashville in June. The Tennessean has more.

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Lawsuit Filed in Nashville Conservatorship Case

Nashville attorney John E. Clemmons, whose law license already is under suspension for misappropriation of a ward’s funds, is being accused in a civil suit of misappropriating at least $450,000 from a now-deceased elderly woman whom the courts had entrusted to his care. The suit charges Clemmons with breach of fiduciary duty, conversion and intentional misappropriation of funds in handling the estate of Nannie P. Malone, The Tennessean reports. The suit was filed by Malone’s daughter.

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Important Issues Still at Play in Legislature

A number of bills of interest to lawyers may see action before the end of the session. They include:

Lawyer Regulation -- A bill (SB 779/HB 635) to impose criminal sanctions on Board of Professional Responsibility panel members, staff, lawyers subject to discipline, and their counsel for certain procedural violations could see action in committees in both chambers. The TBA has resisted this unwelcome intrusion in the Supreme Court’s disciplinary process.

Tort -- Codification of comparative fault with limitations of joint and several liability in several types of cases that the courts have carved out by common law -- including products liability and cases with combined intentional and negligent actors -- still awaits House committee action (SB 56/HB 1099).

Collateral Source Rule -- The effort to limit the effect of the collateral source rule (SB 1184/HB 978) will be studied for now but could return next year.

Workers Compensation Overhaul -- The Workers Compensation overhaul (SB 200/HB 194) continues its march towards expected passage. According to the Associated Press, the plan is scheduled for a full Senate vote on Monday night with the House Finance Committee taking it up on Tuesday.

Conservatorship -- The work of the TBA’s Special Committee on Conservatorship Practice and Procedure has been adopted by the Senate (SB 555/HB 692) and should see action in the House Civil Justice Committee this week.

Trust Law -- A bill (SB 713/HB 873) to rewrite Tennessee trust law and a 52-page amendment debuted 10 days ago will see action in the House Civil Justice Committee.

Criminal -- The Senate Judiciary Committee will hear about legislation (SB 1362/HB 1293) permitting prosecution of an alleged repeat child abuser in any county where an act of of abuse allegedly occurred, and permitting evidence of all prior child abuse by declaring past offenses to be a "continuing offense.”

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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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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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78-Year-Old Freed from Public Conservator’s Control

After a three-month court battle and a two-hour court hearing, 78-year-old Nashville resident Mary Fowler won her battle Tuesday to have a family member serve as her conservator rather than county public guardian, Jeanan Mills Stuart, who had been appointed last year over the objections of Fowler’s brother. This time around, Fowler’s sister was given immediate authority to take over as conservator. A number of Fowler’s family had complained about Stuart’s fees and questioned her control over Fowler’s finances and life decisions, The Tennessean reports. Fowler is one of a handful of wards who successfully have sought release from Stuart’s control.

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Conservator Pleads Guilty to Abuse, Theft

A former court-appointed conservator pleaded guilty Monday to theft and sexual battery against an elderly, disabled couple he was charged with protecting, according to The Tennessean. Walter Strong of Celina admitted to sexual battery of the woman and theft of $105,479 from the couple. He was ordered to make restitution, but his attorney said it was unlikely he would ever have the resources to pay back the full amount.  The decision comes on the heels of a recommendation by the Tennessee Bar Association to amend state conservatorship law.

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TBA Recommends Conservatorship Law Changes

The Tennessee Bar Association Board of Governors approved a series of proposed changes in state conservatorship law at its winter meeting. The recommendations now will be forwarded to legislative leaders. Among the proposed changes, the recommendation establishes a uniform emergency placement process, clarifies the role of guardians ad litem, requires court orders to specify rights being taken away and calls for more frequent financial reports. The recommendations follow a series of hearings held across the state at which committee members heard from witnesses who lost all of their assets as victims of conservatorships. Read more in The Tennessean or download a copy of the TBA’s recommended changes.

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Conservatorship Hearings Conclude With Events in Morristown, Chattanooga

The Tennessee Bar Association this week held its final two public hearings on how current conservatorship law is working or could be improved. You can now watch video from the event held Tuesday, Nov. 13, in Morristown and or Wednesday, Nov. 14, in Chattanooga. You can also see videos from earlier hearings, the first held Sept, 20 in Nashville and the second, held Oct. 23 in Memphis.

Learn more about the public hearings and the issue. (Photos by Jenny Jones)

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Conservatorship Hearings Continue

Public hearings on conservatorship law continue this week, with sessions planned for Tuesday in Morristown and Wednesday in Chattanooga. The sessions are taking place to help improve practice and procedure in dealing with adults with diminished capacity, including frail elders, persons with developmental disabilities, individuals with physical disabilities, and persons with mental health or addiction issues. The Morristown session will be held tomorrow at the Hamblen County Courthouse, 511 W. Second North St., from 1 to 5 p.m. Eastern time. The Chattanooga session will be Wednesday at the Hamilton County Courthouse, 625 Georgia Ave., also from 1 to 5 p.m. Eastern time.

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