ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) FILED Respondent/Appellant ) April 29, 1998
Cecil W. Crowson Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT AT NASHVILLE, TENNESSEE
HONORABLE FRANK G. CLEMENT, JR., PROBATE JUDGE
George H. Cate, Jr. 95 White Bridge Road Suite 503, Cavalier Building Nashville, TN 37205 ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT
William Kennerly Burger SunTrust Bank Building, Suite 306 201 E. Main Street, P. O. Box 1969 Nashville, TN 37133-1969 ATTORNEY FOR PETITIONER/APPELLEE
AFFIRMED AND REMANDED
WILLIAM H. INMAN, SENIOR JUDGE
CONCUR:
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION BEN H. CANTRELL, JUDGE ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) Respondent/Appellant )
OPINION
The trial court found the respondent in need of a conservator and
appointed Guardianships and Trusts, Inc. as conservator of her person and her
estate.
We affirm the judgment of the trial court.
Nora Elizabeth McGill [respondent], who is now 83 years of age, has
suffered since birth from disabling cerebral palsy. She is further disabled by
severe osteoporosis, a pronounced speech impediment which makes
communication very difficult, and a hearing deficit. She has also suffered a
mild stroke. In 1960 she was determined to be totally disabled for social
security disability purposes.
Respondent never married and lived on a farm with her father and
mother, who died in 1960 and 1970 respectively. She has two brothers who
now live in Florida, and had a sister who is now deceased. After the death of her
parents, respondent’s sister assisted her with grocery shopping, banking and
daily needs. When the sister died in 1988, respondent employed live-in
housekeepers. Her family was consulted by respondent’s nurses and
occasionally by her doctors in matters concerning her care.
Respondent’s relationships with those who assisted her after the death of
her sister were troublesome. Her brothers or her niece [petitioner] were contacted various times in 1988 and 1989 with complaints from the nurse that
respondent would not take her medications as directed, and she was hospitalized
several times in one year for medication adjustments. Her brother, William,
petitioned for appointment of a limited guardian on December 6, 1989. He
testified that the initial appointment was at respondent’s request:
“[W]hy Nora had asked me personally if I would get an attorney to try to see what we could do to stop her from - - her signature being valid. So she gave me the name of - - who ended up being the guardian ad litem - - Mr. Larry Brandon in Murfreesboro. He came by to see Nora at the - - at that time she had been sent to Stones River Manor in a nursing home. And he advised her that a guardianship was the only solution that she could have. So she wanted me to be and I asked my sister [Nora] at that time that I would like somebody else because of my age to be with me. And so then she decided on my sister [sic - daughter] Elizabeth, that she could be the guardian with me. So that was the beginning of the guardianship in ‘89.”
The guardianship apparently went reasonably well for several years, and
respondent was able to stay at home in her duplex apartment on 18 acres of land
in Rutherford County with a live-in registered nurse. According to the terms of
the guardianship, she was provided $500.00 each month from her considerable
estate for “spending money.” 1 However, the nurse reported to petitioner that:
“she [respondent] was being taken to the bank and that she was writing $500 worth, just all cash money, and that the money was being accumulated at her residence. And the lady was in fear of her and Lizzie’s welfare, afraid someone was going to break in and steal it because she was openly showing people that she had it and counting it out . . .”2
After her hospitalization in 1989, respondent was taken to a nursing home
in Rutherford County. Later petitioner moved respondent to a nursing home in
Davidson County, and still later directed that certain of respondent’s friends and
acquaintances, some of whom were members of The Church Triumphant, not be
1 Respondent’s estate consists of improved real property, all of which is currently rented, valued at approximately $450,000.00, plus CD’s and cash of approximately $187,000.00.
2 Two close relatives who kept large sums of cash had been murdered at home during a robbery. allowed to visit her in the nursing home because petitioner believed they were
causing discord between respondent and her family.
Respondent soon became quite dissatisfied with her circumstances and on
June 24, 1991 filed a petition for the termination of her guardianship. The
reported case of McGill v. Hendrix, 913 S.W.2d 184 (Tenn. 1995) recounts
respondent’s continuous and vigorous litigation to that end.3
The case is now before us on appeal from the decision of the Probate
Court of Davidson County, which found that “there is no question in my mind
that a conservatorship is absolutely necessary for the welfare and benefit of Ms.
McGill.” The trial court found that the respondent would be best served by a
non-family conservator and appointed
“. . . Guardianships and Trusts Inc. as conservator of Ms. McGill with Ms. [Elizabeth] Hendrix as stand-by conservator in the event, for whatever reason, Guardianships and Trusts should be unable or unwilling to serve . . . it is the conservatorship of the person and the estate so that total control of Ms. McGill shall be in the hands of the conservator, Guardianships and Trusts, Inc.”
Review of the findings of fact made by the trial court is de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).
The court in a conservatorship action must determine two facts by clear
and convincing evidence. The first fact is the person “is fully or partially
disabled,” 4 and the second fact is the person is “in need of assistance from the
court.” T.C.A. § 34-11-126 (1996); Crumley v. Perdue, No. 01A01-9704-CH-
00168, LEXIS 774 (Tenn. App.1997).
3 Her attorney at that time, now deceased, also represented one of these acquaintances, and the court remov ed him as respon dent’s co unsel bec ause of th e conflict o f interest. 4 "Disabled person” means any person 18 years of age or older determined by the court to be in need of partial or full sup ervision, pro tection and a ssistance by rea son of men tal illness, physical illness o r injury, developmental disability or other mental or physical incapacity. T.C.A. § 34-11-101(7) (1996) The medical evidence of respondent’s disability is provided by the report
of Dr. J. D. Bryant, who advised that respondent has a medical history of
cerebral palsy, hypertension, type II diabetes mellitus, chronic migraine
headache, large hiatal hernia with history of esophageal stricture, osteoporosis
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ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) FILED Respondent/Appellant ) April 29, 1998
Cecil W. Crowson Appellate Court Clerk
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT AT NASHVILLE, TENNESSEE
HONORABLE FRANK G. CLEMENT, JR., PROBATE JUDGE
George H. Cate, Jr. 95 White Bridge Road Suite 503, Cavalier Building Nashville, TN 37205 ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT
William Kennerly Burger SunTrust Bank Building, Suite 306 201 E. Main Street, P. O. Box 1969 Nashville, TN 37133-1969 ATTORNEY FOR PETITIONER/APPELLEE
AFFIRMED AND REMANDED
WILLIAM H. INMAN, SENIOR JUDGE
CONCUR:
HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION BEN H. CANTRELL, JUDGE ELIZABETH HENDRIX, ) DAVIDSON PROBATE ) No. 95P-1802 Petitioner/Appellee ) ) Appeal No. v. ) 01A01-9709-PB-00536 ) NORA ELIZABETH McGILL, ) ) Respondent/Appellant )
OPINION
The trial court found the respondent in need of a conservator and
appointed Guardianships and Trusts, Inc. as conservator of her person and her
estate.
We affirm the judgment of the trial court.
Nora Elizabeth McGill [respondent], who is now 83 years of age, has
suffered since birth from disabling cerebral palsy. She is further disabled by
severe osteoporosis, a pronounced speech impediment which makes
communication very difficult, and a hearing deficit. She has also suffered a
mild stroke. In 1960 she was determined to be totally disabled for social
security disability purposes.
Respondent never married and lived on a farm with her father and
mother, who died in 1960 and 1970 respectively. She has two brothers who
now live in Florida, and had a sister who is now deceased. After the death of her
parents, respondent’s sister assisted her with grocery shopping, banking and
daily needs. When the sister died in 1988, respondent employed live-in
housekeepers. Her family was consulted by respondent’s nurses and
occasionally by her doctors in matters concerning her care.
Respondent’s relationships with those who assisted her after the death of
her sister were troublesome. Her brothers or her niece [petitioner] were contacted various times in 1988 and 1989 with complaints from the nurse that
respondent would not take her medications as directed, and she was hospitalized
several times in one year for medication adjustments. Her brother, William,
petitioned for appointment of a limited guardian on December 6, 1989. He
testified that the initial appointment was at respondent’s request:
“[W]hy Nora had asked me personally if I would get an attorney to try to see what we could do to stop her from - - her signature being valid. So she gave me the name of - - who ended up being the guardian ad litem - - Mr. Larry Brandon in Murfreesboro. He came by to see Nora at the - - at that time she had been sent to Stones River Manor in a nursing home. And he advised her that a guardianship was the only solution that she could have. So she wanted me to be and I asked my sister [Nora] at that time that I would like somebody else because of my age to be with me. And so then she decided on my sister [sic - daughter] Elizabeth, that she could be the guardian with me. So that was the beginning of the guardianship in ‘89.”
The guardianship apparently went reasonably well for several years, and
respondent was able to stay at home in her duplex apartment on 18 acres of land
in Rutherford County with a live-in registered nurse. According to the terms of
the guardianship, she was provided $500.00 each month from her considerable
estate for “spending money.” 1 However, the nurse reported to petitioner that:
“she [respondent] was being taken to the bank and that she was writing $500 worth, just all cash money, and that the money was being accumulated at her residence. And the lady was in fear of her and Lizzie’s welfare, afraid someone was going to break in and steal it because she was openly showing people that she had it and counting it out . . .”2
After her hospitalization in 1989, respondent was taken to a nursing home
in Rutherford County. Later petitioner moved respondent to a nursing home in
Davidson County, and still later directed that certain of respondent’s friends and
acquaintances, some of whom were members of The Church Triumphant, not be
1 Respondent’s estate consists of improved real property, all of which is currently rented, valued at approximately $450,000.00, plus CD’s and cash of approximately $187,000.00.
2 Two close relatives who kept large sums of cash had been murdered at home during a robbery. allowed to visit her in the nursing home because petitioner believed they were
causing discord between respondent and her family.
Respondent soon became quite dissatisfied with her circumstances and on
June 24, 1991 filed a petition for the termination of her guardianship. The
reported case of McGill v. Hendrix, 913 S.W.2d 184 (Tenn. 1995) recounts
respondent’s continuous and vigorous litigation to that end.3
The case is now before us on appeal from the decision of the Probate
Court of Davidson County, which found that “there is no question in my mind
that a conservatorship is absolutely necessary for the welfare and benefit of Ms.
McGill.” The trial court found that the respondent would be best served by a
non-family conservator and appointed
“. . . Guardianships and Trusts Inc. as conservator of Ms. McGill with Ms. [Elizabeth] Hendrix as stand-by conservator in the event, for whatever reason, Guardianships and Trusts should be unable or unwilling to serve . . . it is the conservatorship of the person and the estate so that total control of Ms. McGill shall be in the hands of the conservator, Guardianships and Trusts, Inc.”
Review of the findings of fact made by the trial court is de novo upon the
record of the trial court, accompanied by a presumption of the correctness of the
finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).
The court in a conservatorship action must determine two facts by clear
and convincing evidence. The first fact is the person “is fully or partially
disabled,” 4 and the second fact is the person is “in need of assistance from the
court.” T.C.A. § 34-11-126 (1996); Crumley v. Perdue, No. 01A01-9704-CH-
00168, LEXIS 774 (Tenn. App.1997).
3 Her attorney at that time, now deceased, also represented one of these acquaintances, and the court remov ed him as respon dent’s co unsel bec ause of th e conflict o f interest. 4 "Disabled person” means any person 18 years of age or older determined by the court to be in need of partial or full sup ervision, pro tection and a ssistance by rea son of men tal illness, physical illness o r injury, developmental disability or other mental or physical incapacity. T.C.A. § 34-11-101(7) (1996) The medical evidence of respondent’s disability is provided by the report
of Dr. J. D. Bryant, who advised that respondent has a medical history of
cerebral palsy, hypertension, type II diabetes mellitus, chronic migraine
headache, large hiatal hernia with history of esophageal stricture, osteoporosis
with multiple fractures of the dorsal spine, left hip fracture, and history of
overdose and misuse of prescribed medication requiring hospitalization. He
reported that her disabilities were mental and physical and that her mental,
physical, social and educational status was fair but her adaptive behavior and
social skills were poor. He opined that since admission to the nursing home her
condition has stabilized and that she needs continued close supervision to
maintain this condition. Further, he opined that she needs a fiduciary for her
physical well-being, to handle her financial affairs, to consent to medical
treatment and to consent to relocation. He recommended continued medical
treatment.
Respondent testified that she did not like Dr. Bryant, who is “the house
doctor,” and alleged that he forced her to undergo examination. However, she
admitted that a psychiatrist was sent to her room the week before the hearing to
examine her mental status and that she refused to see him. She also alleged that
Dr. E. C. Tolbert, who had been her family doctor for twenty years, had been
“blackmailed” by her brother to report that she was disabled. Yet she presented
no countervailing medical testimony or report by any doctor that had not
previously been considered. Therefore, the unrebutted medical evidence is that
respondent is physically and mentally disabled and needs a fiduciary.
The second prong of the test for appointment of a guardian is that she is
in need of assistance from the court. The proof in the record is abundant that
respondent is unable to competently conduct her own affairs. She lived with her parents until their deaths; she then had her sister’s assistance until her death;
she then had live-in nurses until she went to a nursing home. When the nurses
observed that she over-medicated herself and handled her finances unadvisedly,
they were unable to convince her to do otherwise. She sought help from her
brother to invalidate her signature, but when he secured the requested
guardianship she refused to see any family members, all of whom she now
regards as her enemies. She told the nursing home doctor not to touch her, and
she refused psychiatric examination which, if she were correct about her
abilities, might well have led to a different result in this case. Indeed, at the
hearing in this matter she even refused to answer direct questions from the trial
judge:
THE COURT: “Ms. McGill, I would like to know who typed this for you?
A: I promised I wouldn’t tell.
THE COURT: You promised you would not tell?
A: Yes.
THE COURT: Who did you make that promise to?
A: The woman that typed that letter.
THE COURT: Well, I would like to know, Ms. McGill. I’m ordering you to answer the question.
A: I’m sorry.
MR. CHRISTIAN: (her counsel) You have to answer the Court’s question; you must. I know you don’t want to but Judge Clement runs this Court and if he tells you something he can command you to do it.
A: I don’t remember her name.” In this and many other instances, respondent has demonstrated that she
is unable to independently determine or act in her own best interest.
We find the evidence supports the trial court’s finding that the respondent
is disabled and in need of the court’s assistance. The judgment of the trial court
is affirmed at the cost of the appellant and the case is remanded.
_______________________________ William H. Inman, Senior Judge CONCUR:
___________________________ Henry F. Todd, Presiding Judge
_________________________ Ben H. Cantrell, Judge