Conservatorship is meant to protect, but in Tennessee, it sometimes destroys

11:14 AM, Apr 15, 2012   |    comments
Jewell Tinnon, 82, of Nashville, lost her house, her car, her jewelry and all her possessions after her grandsons filed a petition without her knowledge. LARRY MCCORMACK / THE TENNESSEAN
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Just two years ago, 80-year-old Jewell Tinnon was living comfortably in the Edgehill house she and her late husband had bought and paid for years earlier.

Tucked away in the home on a cul-de-sac off 13th Avenue South were a life's worth of possessions, her prized Sunday church clothes and her diamond rings. Parked outside was her 1995 low-mileage Pontiac.

But all that was before a petition was filed, without her knowledge, in Davidson County Probate Court to protect and conserve her life, health and assets.

Today, Tinnon, now 82, lives in a one-bedroom public housing unit watching a television donated by a friend. There is little furniture. Her house, her car, her jewelry and all her possessions are gone, sold off at auction. A large chunk of the proceeds - $36,000 in fees and expenses - was used to pay the lawyers who handled the process.

Tinnon's plight, a Tennessean review has shown, is not unique. For Tinnon and others, records show, conservatorship, a court process intended to protect those judged no longer able to care for themselves, has proved to be a path in the opposite direction.

Stripped of the right to make even the most basic decisions about their life, health or finances, some of those placed in conservatorship have watched their life's savings - everything from their homes to their clothes - swallowed up by legal and other fees.

The situation has drawn the attention of national elderly and legal organizations fighting guardianship and conservatorship abuse and sparked an ongoing effort to change states' laws to provide additional safeguards.

Some who claim their conservatorships were mishandled are fighting back.

After a woman who was trying to get out of a conservatorship complained about how her case was handled, the Nashville judge who handles such cases instituted new procedures in his courtroom.

And Tinnon? After obtaining additional medical exams to prove her mental capacity, she has filed a lawsuit seeking $1.6 million in damages from her former attorney and the organization that had all her possessions auctioned off.

The story of her 14 months under court control offers a window into the power of the court and its processes that can supplant an individual's wishes. And how swiftly a life can be turned upside down as a result.

Grandsons filed petition

Tinnon came to Nashville some 60 years ago and was a cook for transportation companies for much of her working life. She and her husband bought their three-bedroom home in the 1980s, eventually owning it outright. Her husband, an Army veteran, and her only son both passed away years ago. She has two grandsons and a sister living in Georgia.

For Tinnon, the process that would eventually cause her to lose her home and possessions began in late August 2010 when the two adult grandsons filed an emergency petition in the 7th Circuit Probate Court asking Judge David "Randy" Kennedy to place their grandmother in a conservatorship.

The seven-page petition filed by the brothers Kim and Terry Patrick warned that Tinnon's monthly checks and bank statements were "being removed" from her mailbox by third parties.

Still worse, the petition warned, Tinnon had recently been admitted to a local hospital "with hallucinogenic complaints of seeing bugs and other insects crawling around her."

The petition included no medical records or doctor's certification of her condition, although by then she had been transferred to a nursing home for rehabilitation related to weakness in her legs.

According to the two grandchildren, they learned Tinnon was incapable of handling her own affairs when an insurance agent called to inform them that their grandmother had failed to pay her insurance premiums "and this was very uncharacteristic."

Kennedy, the sole judge to regularly preside over such cases in Davidson County, approved the emergency petition on Aug. 24, the same day it was filed, and appointed an attorney to investigate the matter and report back to him before a Sept. 22 hearing. The two grandsons were appointed temporary conservators authorized "to make all reasonable and necessary decisions on behalf of the ward (Tinnon)."

Tinnon later said that her grandsons had little to do with her in recent years until they filed the petition. One of the brothers contended, however, that he was trying to look after his grandmother, and she was being difficult. The Tennessean was unable to reach the other brother.

On Sept. 9, 2010, 16 days after the original petition, Tinnon was first informed of the fact that she had been placed under conservatorship, she said.

Tinnon testifies

Two days before the scheduled hearing and a week after Tinnon was first informed of the conservatorship, Nashville attorney Karl Warden filed a motion with the court asking that he be appointed as the attorney to represent Tinnon. Kennedy approved that request.

Warden told the court that he became aware of Tinnon's case when he was contacted by staffers at the nursing home where she was a patient. Ed Hogan, administrator at Donelson Place Care and Rehabilitation Center, where Tinnon was then a resident, said privacy laws barred him from discussing matters involving patients.

Warden reported to the court that Tinnon told him "she was perfectly capable of making her own decisions and made it clear she was afraid" of the grandchildren already appointed to protect her interests. He also said Tinnon asked him to represent her.

Tinnon's current attorney Michael G. Hoskins said, however, that Tinnon did not request Warden to come to the nursing home and that he showed up there unannounced.

Warden did not respond to multiple phone messages requesting comment. But a local television station, WSMV Channel 4, quoted Warden late last year as saying that he felt sorry for Tinnon.

On Nov. 15, 2010, nearly three months after the original petition, Warden took Tinnon to Dr. Stephen D'Amico for a medical examination. D'Amico signed a report stating that he believed Tinnon was in need of a conservator, records show.

Though the actual report has been sealed, other court documents cite its conclusion that Tinnon suffered from "memory loss consistent with Alzheimer's type dementia" and "needs care 24/7."

Warden told the court that Tinnon objected to a conservatorship, but later said Tinnon asked that, if the judge appointed a conservator, it be her niece or the Greater Nashville Regional Council.

After listening to Tinnon testify that she did not want a conservatorship or her grandchildren to be her conservators, the judge on Dec. 2, 2010, moved ahead and appointed the Greater Nashville Regional Council. In doing this, he removed the two grandsons, acknowledging that they had "an adversarial relationship" with their grandmother.

'Don't sell my stuff'

The Greater Nashville Regional Council is a large agency whose board is composed of dozens of area public officials and which is funded with state, local and federal money. It generally serves as a clearinghouse for regional planning and other efforts related to growth and economic development in 13 counties, including Davidson, Rutherford, Sumner, Stewart, Williamson, Wilson and Montgomery.

One of its arms, the Area Agency on Aging and Disability, provides programs and services for the elderly, including a guardianship program.

The program handles 50 to 60 cases at any given time, which are assigned by judges throughout the 13 counties, said Sam Edwards, executive director of the council.

In a motion on March 18, 2011, the council stated that a sale of Tinnon's home and possessions was in the best interest of the estate. Tinnon, who had been receiving monthly Social Security checks and veteran's benefits related to her husband, did owe some money. Her earlier nursing home care had cost up to $1,000 a month.

But other debt also had accumulated, primarily lawyer fees for the conservatorship and insurance and tax bills for her residence.

Edwards declined to talk about the Tinnon case because it's in litigation. But the Greater Nashville Regional Council has said in court filings that it has acted appropriately and noted that its actions were approved by the judge.

That approval came on April 1, 2011, when Kennedy authorized the auction and sell-off of Tinnon's possessions, including her house, despite her pleading otherwise.

"They didn't have to do that," Tinnon said. "I even told Judge Kennedy in court. I said, 'Don't sell my home. Don't sell my stuff. I worked hard for it.' "

But sell they did.

All possessions sold

Tinnon's car and a life's worth of possessions were sold for a little over $2,600. Her house, then assessed for $150,200, was auctioned off for $83,000. It is now back on the market for $144,500.

An inventory filed with the court shows items sold ranged from boxes of unidentified goods sold for $4 to a sewing machine sold for $52.50 to her 1995 Pontiac sold for $2,050.

Tinnon said every stitch of her clothes and four diamond rings were among the items sold off.

Terry Patrick, one of the grandsons who filed the original petition, said in an interview with The Tennessean that his intention was to protect his grandmother and her assets but that disagreements between him and his grandmother overcame those efforts.

Asked what he thought of the final outcome, Patrick said emphatically, "They done her wrong."

Tinnon's lawsuit accuses Warden, her former lawyer, of agreeing "in direct contravention to his client's wishes, to have the Greater Nashville Regional Council appointed as Tinnon's conservator."

And it alleges the council "breached its fiduciary duty when it undersold Tinnon's real estate and personal assets. As a direct result ... Tinnon is now living in public housing," the complaint states.

The council "could have saved Tinnon's home and assets by allowing her to move back into her home under the care of her niece," the suit charges.

"She told them that they might as well shoot her dead if they took her house away," said her lawyer Hoskins. "They did it anyway."

Hoskins contends records of the conservator-ship show that Warden eventually billed Tinnon's estate for services he provided days before he had even met her.

States take closer look at laws

Some states are taking a closer look at the laws regarding conservatorship.

Ed Boyer, a Florida attorney and head of the National Academy of Elder Care Attorneys, said that several states have shifted conservancy standards to maximize the autonomy of those being placed in a conservatorship and to reduce or eliminate reliance on a simple medical assessment.

As a result, he said, conservatorships in those states have imposed limits on the powers granted to guardians and thus avoid an "all-or-nothing approach."

"There is a trend toward a greater recognition of a person's autonomy," he said.

Elaine Renoire, head of the National Association to Stop Guardian Abuse, said one of her group's concerns is determining the true intent of family members who seek conservatorship of an aging relative.

A 2010 report from the U.S. Government Accountability Office found evidence of abuse and neglect in guardianship cases in 45 states and the District of Columbia. Cited in the report were 20 cases in which guardians "stole or otherwise improperly obtained more than $5.4 million in assets from 158 incapacitated individuals." None of those cases was in Tennessee.

The report noted that reform was especially needed because of the growing aging population.

It also noted that 13 states, including New York, require that guardians go through a certification process. The report, however, found that those requirements were not always effective. Three of the 13 also perform credit checks on guardians.

Renoire said her organization has been active in cases of abuse in Arizona and Illinois. She said only a few states, including Arizona, have moved forward with new laws that ensure conservatorships do what was intended: to preserve, not spend, the assets and to place those needing assistance in the "least restrictive" environment.

TN legislators seek to change law

Tinnon's case and others have caught the attention of some Tennessee legislators, who are seeking to change the state law.

State Rep. Gary Odom, a Nashville Democrat, has filed a bill, based in part on the Tinnon case, that would provide additional protection to people facing conservatorship.

"There are things that are happening that concern me," Odom said. "We've got to make sure that people aren't put into conservatorship without due process."

His bill would set new notice requirements before a conservatorship could be imposed. It also would require additional medical proof, including sworn statements from three physicians, that an emergency conservatorship was justified. Currently, a judge can put someone into a conservatorship based on one medical certification, but even that requirement can be waived temporarily by the judge.

Odom's proposal also would not allow a conservatorship to be initiated before the target of the action was notified, except in extraordinary circumstances.

Odom's bill was amended recently to only require proposed conservators to disclose their relationship with the proposed ward and any serious criminal convictions. The rest of his proposal was sent to a study committee.

Odom learned of Tinnon's case after his wife, Rachel, was enlisted with the help of a friend of Tinnon's to intervene in the conservancy case. Rachel Odom was then joined by Hoskins, and the two now represent her in the pending civil suit against Warden and the regional council.

Mark Addison, a Chattanooga attorney who regularly handles conservatorships in Tennessee and Georgia, said Georgia laws require more proof than in Tennessee that an individual actually needs a conservator, including an independent medical evaluation. Also, the proposed ward has the choice of having his or her own attorney or having a court appoint one. The Georgia law goes further in trying to tailor or limit the conservator's authority in some cases.

The Georgia law "is very protective of the individual" and is "pretty cumbersome," Addison said. "Georgia makes you go through more steps."

So far, there have been no findings made in Tinnon's recent lawsuit.

But for Tinnon, the ordeal has only made her more resolute. A friend helped her find new attorneys who finally got her out of the conservatorship on Oct. 10 based on new medical exams. Now she is determined, if nothing else, to just get her house back.

"I had my house paid for, and I had my car, furniture and everything. And clothes to go to church," she said. "But they told me to my face that they were going to sell everything. And they did."

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