             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                       FILED
                                                        January 22, 1999
IN THE MATTER OF THE                     )
CONSERVATORSHIP OF                       )
                                                       Cecil W. Crowson
EDWARD LEO GRAY,                         )
                                                      Appellate Court Clerk
                                         )
EDWARD LEO GRAY,                         )   Appeal No.
                                         )   01-A-01-9802-CH-00061
       Respondent/Appellant,             )
                                         )   Robertson Chancery
                                         )   No. 13271
VS.                                      )
                                         )
SUSAN POLEN ZIMMERLE,                    )
                                         )
       Petitioner/Appellee.              )


      APPEALED FROM THE CHANCERY COURT OF ROBERTSON COUNTY
                     AT SPRINGFIELD, TENNESSEE

           THE HONORABLE CAROL A. CATALANO, CHANCELLOR



ANGUS GILLIS, III
SCHULMAN, LEROY & BENNETT, P.C.
7th Floor, 501 Union Building
Nashville, TN 37219-0676
       Attorney for Respondent/Appellant

LISA M. SHERRILL
LAW OFFICES OF LARRY D. WILKS
509 West Court Square
Springfield, Tennessee 37172
      Attorney for Petitioner/Appellee




                   AFFIRMED IN PART; REVERSED IN PART;
                             AND REMANDED




                                             BEN H. CANTRELL,
                                             PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.


                               OPINION
                   The trial court appointed a conservator to oversee the financial affairs

of an elderly retired man who had suffered two strokes. We reverse the trial court

because we do not believe the need for a conservator was proven by clear and

convincing evidence.



                              I. Old Age and Physical Decline



                   Edward Leo Gray suffered his first stroke in 1992, when he was seventy-

eight years old and living in Mississippi. His wife of fifty-six years died two years later.

Mr. Gray then bought a home in Greenbrier, Tennessee to be close to his daughter,

the appellee Susan Zimmerle. He suffered a second stroke in August of 1996, and

was admitted to Nashville Memorial Hospital.



                   Mr. Gray stayed in the hospital ten days, and was then transferred to the

Rehabilitation Unit at Tennessee Christian Medical Center. Though he apparently

made progress there, the stroke left him with impaired vision and hearing, and an

unsteady gait. Mr. Gray was discharged from rehabilitation after two weeks, with

prescriptions for a number of medications and a strong recommendation that he

obtain physical help at home.



                   He was not happy with the helpers that were sent to him, and he

cancelled their services after three weeks, leaving Ms. Zimmerle to take up much of

the slack. While working as a schoolteacher, she also cleaned her father’s house, did

his laundry, and prepared food for him, as the two of them struggled with the

difficulties of maintaining his independent lifestyle in the face of his infirmities. In

March of 1997, he reluctantly agreed to enter the Maybelle Carter Home, an assisted

living facility.




                                              -2-
              Mr. Gray stayed at Maybelle Carter only eleven days. He complained

about the food, was not compliant with the medication regimen, and he was unhappy

about being unable to watch the financial news there, because the other residents

preferred soap operas. He returned home, but continued to do poorly there, losing

weight and not maintaining personal hygiene.



              Ms. Zimmerle consulted with an attorney, and had a conservatorship

petition drawn up. The event that precipitated the filing of the petition occurred on

June 4, 1997, when Mr. Gray set out for the Farmers and Merchants Bank on

Highway 41 in Greenbrier with the purpose of cashing in $150,000 worth of CDs, to

obtain funds to invest in Compaq Corporation and Dell Computer. During the course

of a long career with the Tennessee Valley Authority, Mr. Gray had shrewdly invested

his money, and had accumulated assets of over $800,000.



              Mr. Gray drove to the bank on his three wheeled electric scooter, and

asked for the funds. He had previously told the manager that his stroke had left him

legally blind, and she was aware that he had driven the scooter to the bank. She was

alarmed because of this, and because of his disheveled appearance, and she called

the police and Ms. Zimmerle. After Ms. Zimmerle arrived, the police officer took Mr.

Gray to Tennessee Christian Medical Center, where a psychologist, Dr. Jeffrey Bryant,

filled out a certificate for involuntary admission. See Tenn. Code Ann. § 33-6-103(c).



              After admission, Mr. Gray underwent a mental status examination

performed by Dr. James Roberson, a psychiatrist. Dr. Roberson found Mr. Gray to

be “alert and oriented in all spheres,” that he was not delusional, that his fund of

knowledge was excellent, and that his ability to perform serial subtractions was intact.

Dr. Bryant administered a battery of psychological tests which indicated no gross

impairment and no diagnosable dementia.           Mr. Gray’s memory and ability to

concentrate were found to be within the average range for individuals of his age. Dr.


                                         -3-
Bryant recommended that he be released as long as he had a sitter with him eight

hours a day. Mr. Gray was discharged after a probable cause hearing, twelve days

after being admitted to the Medical Center. A short time afterward, he moved to

Atlanta to live with his oldest son.



                            II. Conservatorship Proceedings



                On the day after the incident at the bank, Susan Zimmerle filed her

petition to be appointed as Conservator for the benefit of her father. 1 Attached to the

petition was a sworn report by Dr. Stephen White, an internist who had examined Mr.

Gray within ninety days of the filing. See Tenn. Code Ann. § 34-13-105(c). Dr. White

recommended that a conservator be appointed for Mr. Gray, with broad powers over

his medical care, financial affairs, and living situation. The trial court promptly

appointed a Guardian ad Litem for Mr. Gray.



                The Guardian ad Litem visited with Mr. Gray while he was still at the

hospital. He spoke to the doctors, to all three of Mr. Gray’s children, and to others

who had interacted with Mr. Gray. He also participated in five depositions, and spoke

to Mr. Gray by telephone on September 2, 1997. His report, filed on September 22,

1997, contained much of the same background information as has been stated above.

While finding that Mr. Gray could not adequately take care of his physical needs

without assistance, the Guardian did not specifically recommend the appointment of

a conservator, but stated:

                “Mr. Gray is certainly not insane. He talked to me as a
                normal person, and he seems to have been doing better
                now than he has at some times in the last year. This may
                be contributable (sic) to the fact that he is cooperating
                well with his son.



        1
        Ms. Zim me rle amended her Petition on September 12, 1997, requesting that she be appointed
conservator of her father’s person, and that some “non-related, neutral, bonded party with financial
experience” be appointed as conservator over financial matters.



                                               -4-
        The Guardian ad Litem added:

                “There have been allegations of mishandling of Mr. Gray’s
                funds. This was done during times when Mr. Gray was
                supposedly in full control of his abilities, according to Mr.
                Startup, Mr. Gray’s longtime friend and banker. It seems
                that a bank or someone other than the children might be
                better to handle his property if the court determines that
                he needs help in this regard.



                Hearings on the petition took place on September 25 and December 11,

1997. Mr. Gray testified at length during the December 11 proceedings. He was able

to summarize his educational, family, medical and employment experience, and to

discuss his financial holdings in great detail. When questioned about the incident at

the Farmers and Merchants Bank, he stated that he had asked Ms. Zimmerle to take

him to the bank several times, and that she had refused because she didn’t want him

to cash in the CDs.2 He was also aware that there was no taxi service in Greenbrier.

He therefore decided to take the scooter, but used the back roads to get to the bank,

and was only briefly on the shoulder of Highway 41.



                He also stated that he had been doing much better physically and

mentally since moving in with his son (which was confirmed by testimony of the son,

the son’s wife, his other daughter and others), and that he did not wish to have a

conservator appointed.

                On December 30, 1997 the trial court filed its Findings of Fact and

Judgment of the Court. The document summarized the evidence presented, and

concluded:

                All these facts considered the Court concludes that
                Respondent is mentally competent to handle his own
                business affairs but that he is physically disabled to the
                extent that he cannot logistically and practically
                accomplish the reading, writing, listening/hearing,
                transporting of himself, gathering, organizing and
                transacting the business that his various financial holdings
                requires.


        2
        At the hearing, Ms. Zimm erle denied that her father had ever made this request, or that she
would have refused if he had as ked her.

                                               -5-
                Therefore the Court appoints the Union Planter’s National
                Bank, conservator of the property of the Respondent ...



                The Court also ordered that the costs of the proceedings, including the

fee of the guardian ad litem, the court costs, and the attorney fees incurred by the

petitioner, be charged against the property of Mr. Gray, pursuant to Tenn. Code Ann.

§ 34-11-114. This appeal followed.



                             III. Mr. Gray’s Mental Status



                The appellant argues that the trial court erred in concluding that Mr.

Gray needed a conservator to manage his financial affairs. The appellee argues to

the contrary that the trial court’s order did not go far enough, and that it should also

have appointed a conservator for his person, because Mr. Gray was unable to care

for himself, and did not possess the judgment necessary to preserve his health and

safety.



                We must state at the outset that it is apparent from the record that

because of his physical condition, Mr. Gray cannot take care of himself without

assistance. But it is not so apparent that this assistance must come in the form of a

conservator to make decisions for him. The appellee points to some apparently

isolated incidents of forgetfulness and hostility as evidence of Mr. Gray’s

incompetence. More significantly she cites his decision to discharge the home health

aides sent by Tennessee Christian Medical Center, his refusal to take his medication

at the Maybelle Carter Home, and his decision to drive his scooter to the bank, as

evidence that his judgment was fundamentally flawed, rendering him a danger to his

own survival.



                We believe, however, that these incidents demonstrate the difficulty of

Mr. Gray’s situation. He found himself between a rock and a hard place, and the

                                          -6-
decisions he made, however unwise, resulted from the lack of better alternatives, not

from some fundamental deficiency in his mental processes.



              Mr. Gray discharged his home health aides because he felt that they

didn’t do very much except sit around and watch television, didn’t coordinate their

visits with each other, and that when they did help him, they were unwilling to do

things in the way he wanted.       To a man like Mr. Gray, accustomed to being

independent all his life, it had to be galling to have strangers in his home to meet his

needs. When, in his estimation they failed to meet those needs, it is not surprising

that he decided to do without them.



              Mr. Gray refused his medications at the Maybelle Carter Home because

he thought one of them was causing his diarrhea. Several of the medical experts

testified that diarrhea is a common side-effect of Colchicine, an anti-gout medication

that had been prescribed for Mr. Gray. If Dr. White, who prescribed the Colchicine,

had informed him of this fact, we believe that Mr. Gray would not have taken the

dangerous step of refusing all medications.



              Mr. Gray accused the staff at Maybelle Carter of trying to poison him by

serving him rotten bologna. He later toned down this accusation, and said that the

food was tainted. Regardless of the accuracy of his evaluation of the food, we do not

believe that his statement shows him to be suffering from paranoid delusions, as the

appellee implies. The court noted that like many elderly people, Mr. Gray is not afraid

to say what he feels. We believe he exaggerated his complaints about the food to

express his general discontent with assisted living.       Similarly, we do not take

statements that he wanted to kill himself, which he made from time to time, as

presenting a danger of suicide, but as a sign of depression, and a bid for attention.




                                         -7-
                 Mr. Gray had a right to leave the assisted living facility when he found

that the lifestyle was not to his liking. We note, however, that shortly after leaving, he

called his daughter to tell her he was thinking of returning to Maybelle Carter, because

he was afraid that he might be placing an intolerable burden upon her. Mr. Gray and

Ms. Zimmerle met with administrators at Maybelle Carter to discuss his possible

return, but the institution was unable to make changes in its procedures to

accommodate his needs.



                 Finally, we do agree that it was dangerous for Mr. Gray to drive his

scooter to the Farmers and Merchants Bank on June 4, 1996. However, we do not

believe his decision to be so irrational as to call his competence into question. Like

many investors, he was afraid to miss out on a booming market in computer stocks;

he felt he had no other way to get to the bank; and he took the safest route he knew.



              IV. Medical Evidence and the Conservatorship Statutes



                 The parties both rely upon expert testimony by medical doctors,

psychiatrists and psychologists. While Dr. White and Dr. Bryant both testified in their

depositions that Mr. Gray was in need of a conservator, the deposition of Dr. Kirby

Pate, a geriatric psychiatrist who also examined Mr. Gray, was to the contrary.

Interestingly, the clinical findings of these three doctors and of Dr. Roberson were all

consistent with each other.



                 All the experts (and the Guardian ad Litem) agreed that Mr. Gray was

substantially in possession of his reasoning faculties, but was physically impaired as

a result of his stroke. Drs. Bryant3 and White both expressed concerns about his



        3
          W hile they questioned Mr. Gray directly, both Dr. Bryant and Dr. White relied upon information
supplied by Ms. Zimmerle. Dr. Bryant apparently believed that Mr. Gray had barricaded himself in the
Farmers and Merchants Bank. Such an account of the incident at the bank is directly contradicted by
the testim ony of William Hatfield, the police officer who escorted Mr. Gray to Tennessee Christian
Medic al Cente r.

                                                 -8-
judgment, and the consequences that errors in judgment might have upon his safety.

They also expressed concerns about the future, in view of the likelihood that Mr.

Gray’s condition would worsen over time.



              It appears to us that while the trial court’s order attempted to address

these concerns, the remedy it applied exceeded the mandate of the conservatorship

statutes. The court correctly found that as of the date of the hearing, Mr. Gray was

mentally competent. It also found that he was quite knowledgeable about financial

matters, and mentally capable of handling his own business affairs.               But it

nonetheless appointed a conservator for him, on the ground that his physical

limitations rendered him incapable of conducting the business that his financial

holdings required.



              We do not believe that the evidence supports this conclusion. We note

that after the sale of his home in Greenbrier, the management of Mr. Gray’s assets

will not require travel or a great deal of physical capacity. Almost all transactions can

be handled by telephone. Though Mr. Gray’s hearing is diminished, there is evidence

in the record that he could hear well enough to carry on a conversation over the

phone. His vision is poor, but he can read the stock market reports by using a lighted

magnifying glass, and he follows the market avidly by watching financial shows on

television.



              No doubt the court was concerned that Mr. Gray’s absorption in his

financial affairs would lead to a possible repetition of an incident like the one at the

Farmers and Merchants Bank, but with worse consequences for him. The court was

aware that if he had to have a financial conservator appointed, he would prefer it to

be Union Planters Bank, and this was the choice the court made. However Mr. Gray

has chosen to appeal the court’s decision, and we believe he is entitled to have that

decision reversed.


                                          -9-
              Tenn. Code Ann. § 34-11-126 states that “[t]he court must find by clear

and convincing evidence that the respondent is fully or partially disabled and that the

respondent is in need of assistance from the court before a fiduciary can be

appointed.” Further, Tenn. Code Ann. § 34-11-127 tells us that “[t]he court has an

affirmative duty to ascertain and impose the least restrictive alternatives upon the

disabled person which are consistent with adequate protection of the disabled person

and the disabled person's property.”



              We do not believe that the Petitioner has proven by clear and convincing

evidence that Mr. Gray was in need of a fiduciary at the time the court rendered

judgment. Thus, under the circumstances of this case, the least restrictive alternative

was to allow him to manage his own financial affairs.



              We are aware that Mr. Gray’s condition may have changed for the worse

since the hearing, but the law does not authorize the appointment of a conservator on

the ground of prospective disability. We accordingly reverse the judgment of the trial

court and order that the conservatorship be dissolved. We also reverse the award of

attorney’s fees to Ms. Zimmerle’s attorney. The fee of the guardian ad litem and the

court costs below will be paid out of the property of Mr. Gray.



                                          V.



              The judgment of the trial court is reversed. Remand this cause to the

Chancery Court of Robertson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellee.




                                          _________________________________
                                          BEN H. CANTRELL,

                                        - 10 -
                                PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
WILLIAM B. CAIN, JUDGE
