When considering whether or not to appoint someone as conservator over the estate of another person (often called the “ward”), it must be shown to the court by clear and convincing evidence that the ward “is fully or partially disabled and that the [ward] is in need of assistance”. See T.C.A. § 34-1-126 If the court is not convinced the person is disabled, it is not appropriate to give the power to manage their affairs to someone else. But what is a disability and how severe does this disability need to be?
A recent example involves songwriter Danny Tate, who was involved in a lengthy legal battle over whether or not a conservator should have been appointed to control his financial and personal affairs. (A google search should locate numerous articles) This case is a pretty good example of an analysis of a disability.
Was Danny Tate disabled?
In 2007, Danny’s brother became concerned that Danny was suffering from a drug addiction that was so severe that Danny was effectively disabled and unable to manage his money or most other aspects of his life. In an effort to help his brother, David Tate asked the court to appoint a conservator to assist Danny with his affairs.
Generally, when requesting that the court appoint a conservator, it is required that a report of a physician be submitted to the court In this report the doctor will state his opinion on whether the ward is disabled and needs a conservator. In this case, Danny was observed and evaluated by a psychiatrist (Dr. Kenner), who based his opinion on a visit to Mr. Tate’s home where the doctor was able to have a conversation with Danny and observe his appearance and living conditions. Even though the doctor concluded Danny was disabled by his addiction to drugs, there was never a drug test or even an admission by Mr. Tate that he was addicted. Without any of this, how can the doctor diagnose Danny with a disabling addiction?
Is there a disability?
The court quoted this language from an earlier case:
Tennessee’s conservatorship statutes do not define the concept of incapacity and do not identify any particular illnesses or conditions deemed to be disabling or incapacitating. The definition of “disabled person” alludes in the most general terms to “mental illness, physical illness, developmental disability or other mental or physical incapacity.” Thus, while identification of the disabling illness, injury, or condition is an important part of a conservatorship proceeding, the pivotal inquiry involves not merely the diagnosis but also the effect that the illness, injury, or condition has had on the capacity of the person for whom a conservator is sought.
In other words, the important part of the analysis isn’t naming the diagnosis of the ward. As I’ve written before, the critical part is showing the court how their condition affects this person’s ability to manage their day-to-day affairs. Some questions I ask my clients include:
- Does this person understand the value of money and the costs of normal everyday items?
- Would it be easy to convince this person to sign paperwork that might not be in his best interest?
- Does this person keep himself clean and dressed appropriately for the occasion?
- Can this person plan and prepare his own meals?
- If this person was injured or needed help, would he know who to ask?
- Does this person know what his medications are for and how to get refills when they run out?
Of course, the answer to any single one of these questions is enough to prove anything (my wife would say I spend money like I don’t know what it’s worth). However, the court will take a broad view of the ward’s ability to handle these, and many other, daily tasks. In the case of Danny Tate, the doctor said this:
I arrived at [Respondent’s] home at 5909 Old Harding Pike at approximately 11:30 AM on November 8, 2007. I knocked and rang his doorbell for several minutes, before [Respondent] opened his door for my house call. He greeted me wrapped in a comforter, and I explained who I was and the purpose of my visit. None-the-less, he asked several times, who I was, and then he explained that he usually slept during the day and stayed awake at night.
After a few minutes, [Respondent] appeared from his bedroom. He had on a dirty sweat shirt and stained jeans that were several sizes too large for him. He tried to cinch them up with his belt, but they still slipped down across his hips to show that he had not found his underwear. [Respondent’s] personal hygiene suggested that he had neither shaved nor bathed in weeks or perhaps months. His toenails were curved and about three-quarters-of-an-inch-long, and his fingernails were about half that length. His hands were dirty, and dirt formed thick, black crescents under each nail. [Respondent’s] breath and body odor added to the aroma from the living room and kitchen to make the air in his home almost too thick to breathe.
While [Respondent] proved cagey about the type and extent of his drug use, he admitted its affects. He said that he had lost “about twenty-five pound, maybe more,” since he had not weighed himself in months. Judging from the space in his pants and the extra length of his belt he used to hold them up, [Respondent] has gone down at least six inches in girth during his crack binge. He said that six months ago, when he tried to stop, with a two-day stay at Cumberland Height, he had become severely depressed. He spoke of visual hallucinations, seeing a person, that may have been his tenant who occupies an apartment at his house, but he was not sure. He explained that he gave the fellow free rent in exchange for cleaning his house and mowing his yard, but [Respondent] complained that he was missing money and other unspecified valuables around his house.
Even though he did not admit it directly, [Respondent] clearly has become dependent upon crack cocaine. The extent of his addiction and use has impaired his health and his ability to care for himself even in the most basic ways. While he said he wanted to, he showed no sign of stopping his binge. Unlike many in similar circumstances, [Respondent] can probably afford to continue using crack until his body gives out rather than his money. He has withdrawn into an existence that resembles a homeless person except that he has a roof over his head, but his house’s walls and roof only keep his neighbors from seeing his squalid circumstances. He could just as easily live in a garbage-strewn alley as in his house on Old Harding Pike.
How did the doctor know crack was the problem? The court isn’t clear on that point, and it doesn’t really matter. The court went on to explain:
In determining the need for a conservatorship, the pivotal question is not merely the diagnosis or, in this case, the specific drug being abused, but “the effect that the illness, injury, or condition has had on the capacity of the person for whom a conservator is sought.” … The condition at issue here is Respondent’s addiction to a drug that is threatening Respondent’s life and, as Dr. Keener explained in his report and at the hearing, the threat was not remote.
The evidence before the trial court on November 14, 2007, clearly and convincingly established that Respondent was a disabled person in need of the court’s supervision, protection and assistance until Respondent addressed his debilitating and life-threatening addiction.
What you need to know
A lot of people get caught up in the names of diagnoses or conditions. For the purposes of establishing whether or not a conservatorship is needed, technically the ward doesn’t have to have a diagnosis of anything. The analysis is all about their capacity to make their own decisions.
If you have a friend or a loved one who may need a conservator, contact me to find out how I can help you assist and protect them.