By Beth Weems Bradley and Sarah Hearn Sexton

In February 2021, Britney Spears’ conservatorship received renewed attention after the release of “Framing Britney Spears,” a documentary by The New York Times that explores the #FreeBritney movement. Since then, media attention has focused on the negative aspects of a conservatorship ­— loss of individual rights — while ignoring its primary purpose, which is protection of the vulnerable.

Those unfamiliar with the many safeguards surrounding the establishment of a conservatorship have reacted as if the court’s role is to harm rather than help the individual in need of assistance. Nothing could be further from the truth. While the opportunity for abuse always exists, many precautions would have to fail before an opportunistic character such as Marla Grayson in Netflix’s I Care a Lot could steal from and otherwise take advantage of an individual under the protection of the court.

Unlike other counties in Tennessee, Shelby County is fortunate enough to have two divisions of Probate Court whose judges regularly hear petitions for conservatorships and are always mindful of the court’s affirmative duty as set forth in Tenn. Code Ann. § 34-1-127 to ascertain and impose the “least restrictive alternatives” that are consistent with adequate protection of the person with the disability and the property of the person with the disability.¹

In addition, judges exercising probate jurisdiction know they must find by clear and convincing evidence that such person is fully or partially disabled and in need of assistance from the court before a fiduciary can be appointed.2 Thus, a higher standard of proof is required in order for the judge to remove rights from an adult and transfer such rights to a court-appointed conservator. However, before the matter proceeds to hearing, there are several preliminary protections designed to defend the person for whom conservatorship is being sought.

This article will examine some of those safeguards using the facts set forth in the case study below.

CASE STUDY

Ned, the nefarious nephew, seeks to establish a conservatorship for Aunt Violet, the wealthy 85-year-old childless widow of his Uncle Arthur. Because Ned has lost his job and had to file for bankruptcy, he gets Greedy Gretchen to represent him by promising to pay Gretchen a third of the proceeds from the sale of Violet’s residence. Gretchen prepares a petition seeking the appointment of Ned as conservator of the person and estate of Violet. The petition is supported by a sworn medical report completed by Nurse Nancy, Gretchen’s sister, who has never examined Violet but alleges that Violet has advanced dementia, is unable to care for her person and property, and needs a conservator to assist her.

Ned’s proposed management plan is to move Violet to the nursing home where Nancy works and invest Violet’s funds with his former fraternity brother, Fred, who manages his own investment firm in Nevada. Gretchen’s petition is assigned to Judge Josephine, who appoints Guardian ad litem Lynn to impartially investigate the allegations made in the petition and make a recommendation to the court on what is in Violet’s best interest.

FIRST SAFEGUARD: SERVICE AND NOTICE

Lynn calls Gretchen after being notified of her appointment and reviews the petition to confirm that Gretchen wants Lynn to serve Violet as permitted by Tenn. Code Ann. § 34-1-106(a). Lynn also asks Gretchen whether Violet has any siblings, since that information was not contained in Gretchen’s petition as required by Tenn. Code Ann. § 34-3-104. Lynn points out that Tenn. Code Ann. § 34-1-108 requires that notice of the proceedings be given to the Respondent’s closest relatives, including spouse, parents, siblings and person or institution having caring custody of respondent. Gretchen says that Ned will know and gives Lynn permission to speak directly to her client.

Ned tells Lynn that Violet only has one living sister, Sue, who has dementia and lives somewhere in Colorado. He also tells Lynn that Violet had three other siblings (all now deceased), who collectively had nine children, all of whom are Violet’s biological nieces and nephews. Uncle Arthur had two siblings, both deceased, one of whom was Ned’s mother, making him a nephew by marriage.

Lynn sends notice letters out to Violet’s biological nieces and nephews and the other nieces and nephews by marriage. Because she cannot locate a postal address for Violet’s sister, Lynn publishes notice in Shelby County in accordance with Tenn. Code Ann. § 34-1-108(c)(3). Lynn serves Violet when she goes to Violet’s home to consult with her in person as part of her investigation in accordance with Tenn. Code Ann. § 34-1-107(d)(3)(a).

SECOND SAFEGUARD: INVESTIGATION BY GUARDIAN AD LITEM

Lynn finds Violet and her home to be neat and orderly. Violet tells Lynn that Helen Helper, an assistant that her power of attorney, Paula, arranged for her, had just left for the day. In accordance with Tenn. Code Ann. § 34-1-107(d)(2)(C), Lynn attempts to explain the following to Violet:

(i) Substance of the Petition

(ii) Nature of the Proceedings

(iii) Respondent’s Right to Contest the Petition

(iv) Identity of the Proposed Fiduciary

(v) Rights set forth in Tenn. Code Ann. § 34-3-106

Violet says she hasn’t seen Ned in years and thought he was still serving time for defalcation. She does not know Nurse Nancy, who filed the sworn medical report on Violet. Her regular treating physician is Dr. Doright, whom she just saw last week. She encourages Lynn to speak to her physician as well as to her attorney, Marjorie, since she plans to contest the petition.

Marjorie assisted Violet with her estate planning three years ago, which included designating powers of attorney to handle financial matters as well as health care decisions, if needed, and establishing a trust into which all of Violet’s assets have been transferred. Lynn contacts Marjorie, who confirms what Violet said and authorizes Lynn to present an order having Judge Josephine appoint Marjorie as attorney ad litem to resist the appointment of a conservator.

THIRD SAFEGUARD: ATTORNEY AD LITEM

Marjorie obtains a sworn medical report from Dr. Doright and files it confidentially as required by Tenn. Code Ann. § 34-3-105(f) with a petition to dismiss. Marjorie also requests an order permitting expunction of the record as authorized by Tenn. Code Ann. § 34-1-124. Lynn files her written report with the court three days prior to the hearing and in accordance with Tenn. Code Ann. § 34-1-107(f), advises that Violet contest the need for a fiduciary, recommends against the appointment of a fiduciary, and gives notice that Violet and Marjorie will attend the hearing. Lynn also notes that Violet’s younger sister, Sue, who is only physically disabled, and several biological nieces and nephews contacted her to express concern about Ned and praise for how Paula has been assisting Violet as her attorney-in-fact.

Following the hearing, Judge Josephine dismisses Ned’s petition and enters an order permitting expunction. Gretchen asks that her fees be paid by Violet or her trust. Judge Josephine exercises the discretion granted to her in § 34-1-114 to charge the fees she sets for Gretchen and Lynn against Ned, not Violet, noting that Marjorie’s fees will be paid by Violet in accordance with Tenn. Code Ann. § 34-1-125. Violet volunteers to pay Lynn’s fees since she has been so helpful. The judge declines to reimburse Ned for filing fees and costs associated with notice and publication under the terms of § 34-1-114 (c).

FOURTH SAFEGUARD: DUTIES OF FIDUCIARY

Lynn and Marjorie chat after the hearing. Even if Violet had needed a conservator, Lynn said she would never have recommended Ned for the following reasons, among others:

• Possible felony or misdemeanor conviction that was not disclosed in accordance with Tenn. Code Ann. § 34-3-104
• Likely unable to qualify for bond as required under Tenn. Code Ann. § 34-1-105
• Attorney-in-fact Paula had higher priority under Tenn. Code Ann. §34-3-103 than nephew by marriage
• Sworn medical report did not comply with Tenn. Code Ann. § 34-3-105- Not a qualified examiner; not examined within 90 days of filing of petition
• Questionable financial capabilities and integrity to serve as conservator of estate per considerations set forth in § 34-1-107(d)(4)
• Proposal to invest funds out of state not acceptable to court
• Did not have Violet’s best interest at heart

FIFTH SAFEGUARD: OVERSIGHT BY CLERK AND COURT

In order to protect the property of the person who has a disabiity, Tennessee law has requirements including a conservatorship bond, an inventory of the ward’s property, annual accounting of the ward’s property, and restriction of the conservator’s discretion in the management of the property. Had Ned managed to get appointed, Marjorie said the clerk would have reported on any improper expenditures Ned tried to make when he filed his six-month accounting. If Ned failed to file one, the clerk would issue a summons and citation pursuant to Tenn. Code Ann. § 34-1-111. Judge Josephine could enter an order revoking Ned’s authority and appointing a substitute or enter a judgment against Ned and the surety on his bond. Moreover, Marjorie pointed out that Ned would have to get court approval under Tenn. Code Ann. § 34-1-112 to be paid for his fiduciary services. Court approval would also be required to sell Violet’s property under Tenn. Code Ann. § 34-1-116, and Ned would have to notify Violet about the proposed sale. Judge Josephine could re-appoint Lynn as guardian ad litem to investigate the proposed sale.

SIXTH SAFEGUARD: RESPONDENT’S RIGHTS

Both attorneys remarked that Violet would have retained rights even if the petition had been granted. Lynn noted that only the powers specifically enumerated in Judge Josephine’s order as being removed from Violet and transferred to Ned would be considered as having been removed. To the extent not specifically removed, Violet would retain all other powers pursuant to Tenn. Code Ann. § 34-3-107. Marjorie observed that Violet has the right under Tenn. Code Ann. § 34-3-108 to petition the court at any time for a termination or modification of the conservatorship. Violet could communicate that desire to the court by any means, including oral communication or informal letter. In contrast to the “clear and convincing evidence” standard required to create a conservatorship, the standard for terminating a conservatorship is lower, as Tennessee courts apply a “preponderance of the evidence” standard in deciding whether a conservatorship should be terminated.

While there are other protections for a vulnerable individual incorporated in Chapters 1 and 3 of Title 34 of Tennessee Code Annotated, both attorneys agreed that the ones discussed above would be sufficient to deter Ned from using a conservatorship to carry out his nefarious plan.

CONCLUSION

Overall, the court’s central role is to help the individual in need of assistance and to preserve as many decision-making rights as practical under the particular circumstances for the person with a disability. The case study set forth in this article demonstrates the many safeguards surrounding the conservatorship, which are designed to defend and protect the person for whom conservatorship is being sought.

As shown above, the following are just some of the safeguards at play in order to protect the vulnerable: service and notice of the conservatorship proceedings, the appointment of a guardian ad litem and an attorney ad litem, the restrictions on being appointed a conservator, oversight by the clerk and the court that restricts the conservator’s management of the property, and the right of the Respondent to petition the court at any time for a termination or modification of the conservatorship.

These safeguards reinforce the goal of maximizing independence for people with disabilities and minimizing the risk of abuse, neglect and exploitation. |||

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Having practiced in the area of probate law for more than 30 years, Beth Weems Bradley is passionate about protecting our vulnerable population. She is a frequent speaker at seminars related to conservatorships and is often appointed to serve as guardian ad litem. She obtained both her bachelors and law degrees from Vanderbilt University and has spent her entire career at Burch, Porter & Johnson.

Sarah Hearn Sexton is an associate attorney at Burch, Porter & Johnson and a 2021 graduate of the Cecil C. Humphreys School of Law at the University of Memphis

 

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NOTES

1. 2018 Tenn. Pub. Acts ch. 605.
2. Tenn. Code Ann. § 34-1-126.