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In re Conservatorship For Ayers

Court of Appeals of Tennessee, Nashville

June 24, 2015

IN RE CONSERVATORSHIP FOR MARY N. AYERS

Session April 07, 2015

Appeal from the Circuit Court for Putnam County No. 18694 Nolan Goolsby, Judge

This appeal arises from a conservatorship proceeding in the Putnam County Probate Court. The trial court appointed co-conservators over the Respondent's property and person. We vacate the trial court's final order and remand for the entry of an order that complies with Tennessee Rule of Civil Procedure 52.01.

Jason Hicks, Cookeville, Tennessee, for the appellant,

Mary N. Ayers. Dale Bohannon, Cookeville, Tennessee, for the appellee, William H. Nesbitt.

Arnold B. Goldin, J., delivered the opinion of the Court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.

OPINION

ARNOLD B. GOLDIN, JUDGE

I. Background and Procedural History

This lawsuit was commenced on April 28, 2014, when Petitioner William Harold Nesbitt ("Mr. Nesbitt") filed a petition seeking to establish a conservatorship over his sister, Mary N. Ayers ("Ms. Ayers"). The petition alleged that Ms. Ayers suffered from a variety of mental and physical impairments, including Alzheimer's disease, dementia, advanced macular degeneration in both eyes, and osteoarthritis of the knees. In his petition, Mr. Nesbitt contended that Ms. Ayers was unable to care for herself as a result of these conditions and that she required around-the-clock care. Although the petition stated that Ms. Ayers was bedfast and currently located in a rehabilitation facility, it noted that she had refused physical therapy and further alleged that she had refused to pay certain charges required for her care. In support of his petition, Mr. Nesbitt attached a sworn statement of Ms. Ayers' physician that described her alleged disability. In addition to requesting that a guardian ad litem be appointed to represent Ms. Ayers' interests, the petition prayed that Mr. Nesbitt be appointed as conservator over both Ms. Ayers' person and property. A guardian ad litem subsequently was appointed on April 29, 2014.

On June 30, 2014, Mr. Nesbitt filed an amendment to his petition for a conservatorship. The amendment alleged that Ms. Ayers was "faced with a life-threatening situation due to her inability to care for herself[.]" On the same date that Mr. Nesbitt filed this amendment, the trial court entered an order appointing an attorney ad litem to represent the interests of Ms. Ayers. A hearing on the conservatorship action subsequently took place at the beginning of July 2014.[1]

Four witnesses testified at the July 2014 hearing. The first witness to testify was Mr. Nesbitt. Mr. Nesbitt testified that he was retired and lived in Woodbridge, Virginia. According to him, Ms. Ayers often merged fantasy with reality. Moreover, he testified that when he attempted to get Ms. Ayers to pay bills that were overdue, she would tell him that he was wrong and that insurance would pay them. When asked what his sister's feelings were about him serving as conservator, he noted that Ms. Ayers would oppose anyone being appointed a conservator. He also testified that he had not visited Ms. Ayers frequently.

After hearing from Mr. Nesbitt, the trial court heard testimony from Melinda Bilbrey ("Ms. Bilbrey"), the Administrative Coordinator at the rehabilitation facility where Ms. Ayers was staying. Ms. Bilbrey testified concerning the difficulties the rehabilitation facility had with Ms. Ayers. Ms. Bilbrey also testified that Ms. Ayers had the "more dangerous stage of dementia." Following Ms. Bilbrey's testimony, the trial court heard testimony from Janet Winton ("Ms. Winton"). Ms. Winton testified she was the Business Account Manager at the rehabilitation facility where Ms. Ayers was receiving care. She stated that, although Ms. Ayers' account balance had previously been high and went unpaid, the balance had been paid as of the hearing date.

After Ms. Winton testified, the trial court heard testimony from Ms. Ayers, who participated by phone. Ms. Ayers testified that she had worked for over thirty years as a professor at Tennessee Tech University. She claimed that she needed no help in paying her bills and stated that she was uncomfortable with the prospect of Mr. Nesbitt serving as her conservator. She testified that she was able to make decisions for herself and asserted that Mr. Nesbitt "just wanted her money."[2]

In describing her daily routine, Ms. Ayers testified that she has a person who comes and sits with her and runs her errands. Although she refused to agree to anyone being appointed as her conservator, she testified that she would be comfortable with her accountant Sam Sandlin ("Mr. Sandlin") serving as her conservator for her finances. When asked about whom she would like to serve as conservator over her person, she repeated that she did not want her brother to be named. She did ...


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