ELIZABETH HENDRIX,             )   DAVIDSON PROBATE
                               )   No. 95P-1802
      Petitioner/Appellee      )
                               )   Appeal No.
v.                             )   01A01-9709-PB-00536
                               )
NORA ELIZABETH McGILL,         )
                               )          FILED
      Respondent/Appellant     )
                                            April 29, 1998

                                          Cecil W. Crowson
                                         Appellate Court Clerk

            IN THE COURT OF APPEALS OF TENNESSEE
                       AT NASHVILLE


     APPEAL FROM THE DAVIDSON COUNTY PROBATE COURT
                AT NASHVILLE, TENNESSEE


               HONORABLE FRANK G. CLEMENT, JR.,
                      PROBATE JUDGE




George H. Cate, Jr.
95 White Bridge Road
Suite 503, Cavalier Building
Nashville, TN 37205
ATTORNEY-AD-LITEM- FOR RESPONDENT/APPELLANT

William Kennerly Burger
SunTrust Bank Building, Suite 306
201 E. Main Street, P. O. Box 1969
Nashville, TN 37133-1969
ATTORNEY FOR PETITIONER/APPELLEE



                      AFFIRMED AND REMANDED




                               WILLIAM H. INMAN, SENIOR JUDGE

CONCUR:

HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION
BEN H. CANTRELL, JUDGE
ELIZABETH HENDRIX,                        )     DAVIDSON PROBATE
                                          )     No. 95P-1802
          Petitioner/Appellee             )
                                          )     Appeal No.
v.                                        )     01A01-9709-PB-00536
                                          )
NORA ELIZABETH McGILL,                    )
                                          )
          Respondent/Appellant            )


                                    OPINION

          The trial court found the respondent in need of a conservator and

appointed Guardianships and Trusts, Inc. as conservator of her person and her

estate.

          We affirm the judgment of the trial court.

          Nora Elizabeth McGill [respondent], who is now 83 years of age, has

suffered since birth from disabling cerebral palsy. She is further disabled by

severe osteoporosis, a pronounced speech impediment which makes

communication very difficult, and a hearing deficit. She has also suffered a

mild stroke. In 1960 she was determined to be totally disabled for social

security disability purposes.

          Respondent never married and lived on a farm with her father and

mother, who died in 1960 and 1970 respectively. She has two brothers who

now live in Florida, and had a sister who is now deceased. After the death of her

parents, respondent’s sister assisted her with grocery shopping, banking and

daily needs. When the sister died in 1988, respondent employed live-in

housekeepers. Her family was consulted by respondent’s nurses and

occasionally by her doctors in matters concerning her care.

          Respondent’s relationships with those who assisted her after the death of

her sister were troublesome. Her brothers or her niece [petitioner] were
contacted various times in 1988 and 1989 with complaints from the nurse that

respondent would not take her medications as directed, and she was hospitalized

several times in one year for medication adjustments. Her brother, William,

petitioned for appointment of a limited guardian on December 6, 1989. He

testified that the initial appointment was at respondent’s request:

        “[W]hy Nora had asked me personally if I would get an attorney to try
        to see what we could do to stop her from - - her signature being valid.
        So she gave me the name of - - who ended up being the guardian ad
        litem - - Mr. Larry Brandon in Murfreesboro. He came by to see Nora
        at the - - at that time she had been sent to Stones River Manor in a
        nursing home. And he advised her that a guardianship was the only
        solution that she could have. So she wanted me to be and I asked my
        sister [Nora] at that time that I would like somebody else because of
        my age to be with me. And so then she decided on my sister [sic -
        daughter] Elizabeth, that she could be the guardian with me. So that
        was the beginning of the guardianship in ‘89.”

         The guardianship apparently went reasonably well for several years, and

respondent was able to stay at home in her duplex apartment on 18 acres of land

in Rutherford County with a live-in registered nurse. According to the terms of

the guardianship, she was provided $500.00 each month from her considerable

estate for “spending money.” 1 However, the nurse reported to petitioner that:

         “she [respondent] was being taken to the bank and that she was
         writing $500 worth, just all cash money, and that the money was
         being accumulated at her residence. And the lady was in fear of her
         and Lizzie’s welfare, afraid someone was going to break in and steal
         it because she was openly showing people that she had it and
         counting it out . . .”2

         After her hospitalization in 1989, respondent was taken to a nursing home

in Rutherford County. Later petitioner moved respondent to a nursing home in

Davidson County, and still later directed that certain of respondent’s friends and

acquaintances, some of whom were members of The Church Triumphant, not be



        1
        Respondent’s estate consists of improved real property, all of which is currently rented, valued at
approximately $450,000.00, plus CD’s and cash of approximately $187,000.00.

        2
            Two close relatives who kept large sums of cash had been murdered at home during a robbery.
allowed to visit her in the nursing home because petitioner believed they were

causing discord between respondent and her family.

         Respondent soon became quite dissatisfied with her circumstances and on

June 24, 1991 filed a petition for the termination of her guardianship. The

reported case of McGill v. Hendrix, 913 S.W.2d 184 (Tenn. 1995) recounts

respondent’s continuous and vigorous litigation to that end.3

         The case is now before us on appeal from the decision of the Probate

Court of Davidson County, which found that “there is no question in my mind

that a conservatorship is absolutely necessary for the welfare and benefit of Ms.

McGill.” The trial court found that the respondent would be best served by a

non-family conservator and appointed

         “. . . Guardianships and Trusts Inc. as conservator of Ms. McGill
         with Ms. [Elizabeth] Hendrix as stand-by conservator in the event,
         for whatever reason, Guardianships and Trusts should be unable or
         unwilling to serve . . . it is the conservatorship of the person and
         the estate so that total control of Ms. McGill shall be in the hands
         of the conservator, Guardianships and Trusts, Inc.”

         Review of the findings of fact made by the trial court is de novo upon the

record of the trial court, accompanied by a presumption of the correctness of the

finding, unless the preponderance of the evidence is otherwise. T.R.A.P. 13(d).

         The court in a conservatorship action must determine two facts by clear

and convincing evidence. The first fact is the person “is fully or partially

disabled,” 4 and the second fact is the person is “in need of assistance from the

court.” T.C.A. § 34-11-126 (1996); Crumley v. Perdue, No. 01A01-9704-CH-

00168, LEXIS 774 (Tenn. App.1997).




         3
          Her attorney at that time, now deceased, also represented one of these acquaintances, and the court
remov ed him as respon dent’s co unsel bec ause of th e conflict o f interest.
         4
            "Disabled person” means any person 18 years of age or older determined by the court to be in need of
partial or full sup ervision, pro tection and a ssistance by rea son of men tal illness, physical illness o r injury,
developmental disability or other mental or physical incapacity. T.C.A. § 34-11-101(7) (1996)
      The medical evidence of respondent’s disability is provided by the report

of Dr. J. D. Bryant, who advised that respondent has a medical history of

cerebral palsy, hypertension, type II diabetes mellitus, chronic migraine

headache, large hiatal hernia with history of esophageal stricture, osteoporosis

with multiple fractures of the dorsal spine, left hip fracture, and history of

overdose and misuse of prescribed medication requiring hospitalization. He

reported that her disabilities were mental and physical and that her mental,

physical, social and educational status was fair but her adaptive behavior and

social skills were poor. He opined that since admission to the nursing home her

condition has stabilized and that she needs continued close supervision to

maintain this condition. Further, he opined that she needs a fiduciary for her

physical well-being, to handle her financial affairs, to consent to medical

treatment and to consent to relocation. He recommended continued medical

treatment.

      Respondent testified that she did not like Dr. Bryant, who is “the house

doctor,” and alleged that he forced her to undergo examination. However, she

admitted that a psychiatrist was sent to her room the week before the hearing to

examine her mental status and that she refused to see him. She also alleged that

Dr. E. C. Tolbert, who had been her family doctor for twenty years, had been

“blackmailed” by her brother to report that she was disabled. Yet she presented

no countervailing medical testimony or report by any doctor that had not

previously been considered. Therefore, the unrebutted medical evidence is that

respondent is physically and mentally disabled and needs a fiduciary.

      The second prong of the test for appointment of a guardian is that she is

in need of assistance from the court. The proof in the record is abundant that

respondent is unable to competently conduct her own affairs. She lived with
her parents until their deaths; she then had her sister’s assistance until her death;

she then had live-in nurses until she went to a nursing home. When the nurses

observed that she over-medicated herself and handled her finances unadvisedly,

they were unable to convince her to do otherwise. She sought help from her

brother to invalidate her signature, but when he secured the requested

guardianship she refused to see any family members, all of whom she now

regards as her enemies. She told the nursing home doctor not to touch her, and

she refused psychiatric examination which, if she were correct about her

abilities, might well have led to a different result in this case. Indeed, at the

hearing in this matter she even refused to answer direct questions from the trial

judge:

         THE COURT:         “Ms. McGill, I would like to know who typed
                           this for you?

         A:                I promised I wouldn’t tell.

         THE COURT:        You promised you would not
                           tell?

         A:                Yes.

         THE COURT:        Who did you make that
                           promise to?

         A:                The woman that typed that letter.

         THE COURT:        Well, I would like to know,
                           Ms. McGill. I’m ordering you
                           to answer the question.

         A:                I’m sorry.

         MR. CHRISTIAN: (her counsel)
                       You have to answer the
                       Court’s question; you must. I
                       know you don’t want to but
                       Judge Clement runs this Court
                       and if he tells you something
                       he can command you to do it.

         A:                I don’t remember her name.”
      In this and many other instances, respondent has demonstrated that she

is unable to independently determine or act in her own best interest.

      We find the evidence supports the trial court’s finding that the respondent

is disabled and in need of the court’s assistance. The judgment of the trial court

is affirmed at the cost of the appellant and the case is remanded.



                                       _______________________________
                                       William H. Inman, Senior Judge
CONCUR:



___________________________
Henry F. Todd, Presiding Judge



_________________________
Ben H. Cantrell, Judge
