               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 April 07, 2015 Session


             IN RE CONSERVATORSHIP FOR MARY N. AYERS

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

                         ________________________________

        No. M2014-01522-COA-R3-CV – Filed June 24, 2015
                     _________________________________

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.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
                                   Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY ARMSTRONG, J., joined.


Jason Hicks, Cookeville, Tennessee, for the appellant, Mary N. Ayers.
Dale Bohannon, Cookeville, Tennessee, for the appellee, William H. Nesbitt.
                                      OPINION
                             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

1
  Although the trial court‟s July 8, 2014, order states that the hearing took place on July 2, 2014, we note
that the statement of the evidence approved by the trial court lists a different hearing date of July 3, 2014.
2
  Ms. Ayers‟ testimony on these matters is reflected in the statement of the evidence approved by the trial
court.

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       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 state, however, that she
trusted her friend and long-time secretary from Tennessee Tech University, Mardell
Brown (“Ms. Brown”).

       Following Ms. Ayers‟ testimony, the trial court concluded that the appointment of
a conservator was needed. On July 8, 2014, the trial court entered an order appointing
Mr. Nesbitt and Mr. Sandlin as co-conservators over Ms. Ayers‟ property and financial
matters. The order also appointed Mr. Nesbitt and Ms. Brown as co-conservators of Ms.
Ayers‟ person. On August 5, 2014, Ms. Ayers filed a timely notice of appeal.

                                              II. Issues Presented
        In her brief, Ms. Ayers raises the following issues for review, stated as follows:
        1. Whether the trial court erred in appointing a conservatorship based on
           the proof.

        2. Whether the trial court erred in not continuing the case to give the
           Attorney Ad Litem time to develop the case and alternative candidates
           for conservator.

        3. Whether the trial court erred in appointing a conservator because it was
           not the least restrictive means available.

With respect to this last issue, Ms. Ayers appears to specifically challenge the necessity
of the trial court‟s imposition of a conservatorship over her property and financial
affairs.3
                                     III. Standard of Review
       Because “a petition for the appointment of a conservator requires the lower court
to make legal, factual, and discretionary determinations[,]” appellate courts may need to
apply more than one standard of review when reviewing a lower court‟s decision
regarding the request for a conservatorship. Crumley v. Perdue, No. 01-A-01-9704-
CH00168, 1997 WL 691532, at *2 (Tenn. Ct. App. Nov. 7, 1997). In reviewing any
findings of fact by the trial court, our review is de novo “upon the record of the trial
court, accompanied by a presumption of the correctness of the finding, unless the

3
  In her brief, Ms. Ayers asserts that “[t]his is a case of a woman who can take care of herself at least
financially[.]”

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preponderance of the evidence is otherwise.” Tenn. R. App. P. 13(d). We review a trial
court‟s conclusions on questions of law de novo, but no presumption of correctness
attaches to the trial court‟s legal conclusions. Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000). “We review discretionary determinations under an abuse of discretion
standard.” In re Conservatorship of Todd, No. E2009-02346-COA-R3-CV, 2010 WL
2350568, at * 8 (Tenn. Ct. App. June 14, 2010) (citation omitted). “A trial court abuses
its discretion when it has applied an incorrect legal standard or has reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.” Id.
(citing Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001)).

                                           IV. Discussion
       “The purpose of a conservatorship proceeding is to protect the person and property
of a [person with a disability].” In re Conservatorship of Clayton, 914 S.W.2d 84, 90
(Tenn. Ct. App. 1995) (citations omitted). “„Conservators are court appointed fiduciaries
who act as agents of the court and their rights and responsibilities are set forth in the
court‟s orders.‟” In re Lawton, 384 S.W.3d 754, 761 (Tenn. Ct. App. 2012) (quoting
AmSouth Bank v. Cunningham, 253 S.W.3d 636, 641 (Tenn. Ct. App. 2006)). Their
fiduciary position of trust is “of the highest and most sacred character.” Grahl v. Davis,
971 S.W.2d 373, 377 (Tenn. 1998) (citation omitted). “The court itself is ultimately
responsible for [persons with a disability] who come under its care and protection[.]” In
re Conservatorship of Clayton, 914 S.W.2d at 90 (citations omitted).

       Under Tennessee Code Annotated § 34-1-126, a petitioner seeking the
appointment of a conservator must prove by clear and convincing evidence that the
person for whom the conservatorship is sought is disabled and in need of assistance. In
re Lawton, 384 S.W.3d at 761 (citations omitted). After the petitioner meets his burden,
“the trial court is then charged with responsibility for determining whether the
appointment is in the respondent‟s best interest.” Id. (citation omitted). In determining
which person should be appointed to serve as conservator, the trial court is guided by the
following order of priority:

      1. The person or persons designated in a writing signed by the alleged
         person with a disability;

      2. The spouse of the person with a disability;

      3. Any child of the person with a disability;

      4. Closest relative or relatives of the person with a disability;

      5. A district public guardian as described by § 34-7-104; and


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       6. Other person or persons.

Tenn. Code Ann. § 34-3-103 (Supp. 2014). The designation of a particular person to
serve as conservator is left to the discretion of the trial court. In re Conservatorship of
Todd, 2010 WL 2350568, at *8 (citation omitted). Nevertheless, in order to appoint a
conservator under Tennessee Code Annotated § 34-3-103, the trial court must make two
determinations. First, the trial court must determine what is in the best interest of the
person with a disability, considering all relevant facts. Id. (citing Crumley, 1997 WL
691532, at *3). Second, the trial court must determine “who, under the prioritized list, is
the appropriate conservator.” Id. (citing Crumley, 1997 WL 691532, at *3). Moreover,
when the trial court finds that a conservatorship is needed, it “has an affirmative duty to
ascertain and impose the least restrictive alternatives upon the person with a disability
that are consistent with adequate protection of the person with a disability and the
property of the person with a disability.” Tenn. Code Ann. § 34-1-127 (Supp. 2014).

                                  Request for a Continuance

       We first examine Ms. Ayers‟ contention that the conservatorship hearing should
have been continued to a later date. In her brief, Ms. Ayers contends that her attorney ad
litem made an oral motion on the date of trial requesting a continuance. She further states
that the trial court denied this motion, thus depriving her of the opportunity to develop
her case and to explore alternative candidates for conservator. Having reviewed the
record transmitted to us on appeal, we conclude that we are unable to review Ms. Ayers‟
assertion of error on this issue.

        As an appellate court, “our review power is limited to those factual and legal
issues for which an adequate legal record has been preserved.” Trusty v. Robinson, No.
M2000-01590-COA-R3-CV, 2001 WL 96043, at *1 (Tenn. Ct. App. Feb. 6, 2001)
(citations omitted). “The duty to see to it that the record on appeal contains a fair,
accurate, and complete account of what transpired with respect to the issues being raised
on appeal falls squarely on the shoulders of the parties themselves, not the courts.” Id.
(citations omitted). “For those . . . matters that cannot be gleaned from the papers filed
with the court, Tenn. R. App. P. 24(a)(3) requires a transcript or statement of the
evidence.” Id. at *2. Here, Ms. Ayers asserts that the trial court erred in denying her oral
motion for continuance made on the date of trial. There is no transcript of proceedings in
this case, and the statement of the evidence approved by the trial court does not indicate
that a motion for continuance was denied, nor does it even indicate that one was made.4
Moreover, the trial court did not enter an order denying the alleged oral motion. There is
simply no record of this issue by which we can conduct a review. As such, we cannot

4
  In addition, we note that no mention of a motion for continuance was included in Ms. Ayers‟ proposed
statement of evidence.


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conclude that the trial court erred in conducting a hearing on the conservatorship action at
the beginning of July 2014.5

              Conservatorship Appointments and the Least Restrictive Alternative

        We now turn our attention to the remaining issues raised by Ms. Ayers, including
the propriety of the trial court‟s specific conservatorship appointments. Having reviewed
the trial court‟s July 8, 2014, order, we conclude that it does not contain sufficient
findings of fact and conclusions of law to enable meaningful appellate review. Pursuant
to Tennessee Rule of Civil Procedure 52.01, “[i]n all actions tried upon the facts without
a jury, the court shall find the facts specially and shall state separately its conclusions of
law and direct the entry of the appropriate judgment.” Tenn. R. Civ. P. 52.01. Here, the
trial court‟s order is deficient in two significant respects. First, it does not contain
findings in accordance with Tennessee Code Annotated § 34-1-126. Pursuant to that
statute, “[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.” Tenn. Code Ann. § 34-1-126 (2007) (emphasis
added). Upon our review of the trial court‟s July 8, 2014, order, we observe that it
contains virtually no discussion as to why a conservator is needed. Indeed, the order
contains only the conclusory finding that “[d]ue to her mental and physical disability,
Mary N. Ayers is unable to manage her property or business affairs, or to properly take
care of her personal needs.” There is no meaningful discussion of Ms. Ayers‟ functional
or decision-making capacity, see In re Conservatorship of Groves, 109 S.W.3d 317, 331
(Tenn. Ct. App. 2003) (“[W]hile 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.”), and there is no
indication the trial court imposed a conservatorship that complied with the statutory
standard outlined in Tennessee Code Annotated § 34-1-126.

        Second, we observe that the trial court‟s July 8, 2014, order is devoid of any
analysis discussing what is in the best interest of Ms. Ayers. Although the trial court has
discretion with respect to the designation of a particular conservator, it is clear that the
trial court must first determine what is in the best interest of the person with a disability.
In re Conservatorship of Todd, 2010 WL 2350568, at *8 (citations omitted). “The best
interest analysis not only includes the question of whether a conservator is needed, but it
also includes the question of who should be appointed to serve in that role.” Id. at *10.
        Because the trial court‟s July 8, 2014, order does not contain the proper findings as
required by Tennessee Code Annotated § 34-1-126 or contain any discussion of Ms.

5
 As previously noted, although the trial court‟s July 8, 2014, order states that the conservatorship hearing
took place on July 2, 2014, we note that the statement of the evidence approved by the trial court lists a
different hearing date of July 3, 2014.

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Ayers‟ best interest, we conclude that we are unable to properly review the trial court‟s
actions with regard to the conservatorship imposed. We cannot discern whether the trial
court abused its discretion with regard to its particular appointments of co-conservators,
nor can we properly review Ms. Ayers‟ contention that the conservatorship imposed over
her was not the least restrictive alternative pursuant to Tennessee Code Annotated § 34-1-
127. Without sufficient findings and conclusions, “„this court is left to wonder on what
basis the court reached its ultimate decision.‟” Hardin v. Hardin, No. W2012-00273-
COA-R3-CV, 2012 WL 6727533, at *3 (Tenn. Ct. App. Dec. 27, 2012) (citation
omitted).

        In light of our inability to conduct a meaningful appellate review as to the
substantive issues raised on appeal, we therefore vacate the trial court‟s July 8, 2014,
order and remand the case for the entry an order setting out specific findings responsive
to the statutory standard required under Tennessee Code Annotated § 34-1-126 as well as
addressing the best interest of Ms. Ayers in compliance with Tennessee Rule of Civil
Procedure 52.01. Although we decline to require the trial court to hold a new hearing on
these issues, we hold that the trial court may, in its discretion, hold a new hearing and
consider additional proof.

                                     V. Conclusion
        We cannot conclude that the trial court erred in conducting a hearing on the
conservatorship action at the beginning of July 2014. Nevertheless, we are unable to
conduct a meaningful appellate review as to the substantive issues raised on appeal. We
hereby vacate the trial court‟s July 8, 2014, order and remand the case for the entry of an
order setting out specific findings responsive to the statutory standard required under
Tennessee Code Annotated § 34-1-126 as well as addressing the best interest of Ms.
Ayers in compliance with Tennessee Rule of Civil Procedure 52.01. In its discretion, the
trial court may hold a new hearing on these issues and consider additional proof. If the
trial court‟s examination of these matters leads it to different conclusions regarding the
need for a conservator, the needed scope of a conservatorship, or the specific choice of
conservatorship appointments, these conclusions should be reflected in the trial court‟s
order. The costs of this appeal are assessed against the Appellant, Mary N. Ayers, and
her surety, for which execution may issue if necessary.




                                                _________________________________
                                                ARNOLD B. GOLDIN, JUDGE




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