                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 3, 2009 Session

          ROBERT KENT DRAKE, ET AL. v. PAULA MAE DRAKE

                Appeal from the Chancery Court for Hamblen County
                No. 2008-471    Hon. Thomas R. Frierson, II., Judge


             No. E2009-00540-COA-R3-CV - FILED JANUARY 19,2010




Children of defendant mother brought this action to have a conservator appointed for their
mother on the grounds that the mother suffered dementia, Parkinson's disease and other
infirmities and was incompetent and unable to make decisions about her health and finances.
Following trial, the Trial Court found there was clear and convincing evidence that the
mother was disabled and in need of supervision, protection and assistance by means of a
conservatorship due to her permanent mental incapacity. The sons were named as co-
conservators of her person and estate. The attorney for the mother filed an appeal, and we
affirm the Judgment of the Trial Court.


 Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., and JOHN W. M CC LARTY, J., joined.

W. Douglas Collins, Morristown, Tennessee, for the appellant(s), Paula Mae Drake.

Cynthia J. King, Newport, Tennessee, for the appellee(s), Robert Kent Drake and Dennis
Solomon Drake.


                                        OPINION


       Petitioners Petitioned for the appointment of a conservator for the person and estate
of Paula Mae Drake, alleging that Ms. Drake, who is their mother, suffered from dementia,
Parkinson’s disease, and coronary artery disease, and was incompetent and unable to make
decisions about her health or finances. A guardian ad litem and an attorney ad litem were
appointed for Ms. Drake.

       The Trial Court conducted an evidentiary hearing, and took the issues under
submission at the close of the evidentiary hearing. The Court then issued a Memorandum
Opinion, finding there was clear and convincing evidence (from the testimony and the
doctors’ statements) that Ms. Drake was disabled and in need of supervision, protection and
assistance by means of a conservatorship due to her permanent mental incapacity. The Court
found that it was in Ms. Drake’s best interests to name her sons as co-conservators of her
person and estate, and entered an Order of Conservatorship.

        Ms. Drake then filed a Motion for New Trial, alleging that one of the physicians who
opined that Ms. Drake was incompetent, i.e., Dr. Julie Jacques, recanted her opinion two days
prior to trial, but that Ms. Drake’s counsel was unable to schedule a deposition or obtain a
written statement from Dr. Jacques prior to trial. The Court overruled the Motion for New
Trial, as well as Ms. Drake’s attorney’s Motion to Withdraw as counsel. This appeal ensued.

       The issues presented are:

       1.     Whether the evidence presented at trial clearly and convincingly established
              that Ms. Drake is disabled and in need of a conservatorship?

       2.     Whether the Trial Court failed to adequately consider evidence that was
              discovered on the eve of trial?

        In an involuntary conservatorship proceeding such as this, the burden of proof is on
the petitioners to show by clear and convincing evidence that the proposed ward is a
“disabled person” as defined in the conservatorship statute. In re: Conservatorship of
Groves, 109 S.W.3d 317 (Tenn. Ct. App. 2003). This heightened standard of proof should
be enough to produce in the fact-finder’s mind a “firm belief or conviction regarding the
truth of the factual propositions sought to be established by the evidence.” Id., quoting Fruge
v. Doe, 952 S.w.2d 408, 412 (Tenn. 1997). Tenn. Code Ann. §34-1-101(7) defines a
“disabled person” as “any person eighteen (18) years of age or older determined by the court
to be in need of partial or full supervision, protection and assistance by reason of mental
illness, physical illness or injury, developmental disability, or other mental or physical
incapacity.”

       In this case, the proof showed that Ms. Drake required extensive care at least since
2003, the time when she moved to Tennessee and moved in with her son and daughter-in-

                                              -2-
law. They both testified that she needed daily assistance in bathing and hygiene, food
procurement and preparation, managing medication, paying bills, transportation, etc. The
Drakes testified that they had not been able to leave Ms. Drake alone the entire time she was
living with them, and had to hire nurses to care for her in their absence. Other witnesses’
testimony substantiated this evidence, as well as the fact that Ms. Drake was currently
receiving such assistance in a nursing home facility. The Drakes and Lt. Cloer also testified
regarding many instances of bizarre and dangerous behavior by Ms. Drake within the year
before trial.

        Ms. Drake argued that she was capable of caring for herself, but admitted that she
could not drive, that she did not know what medications she was prescribed, that she did not
know how much income she received each month nor what bills she had to pay, etc. Ms.
Drake’s testimony overall is muddled, and she seemed confused at times about what she was
supposed to be talking about. Ms. Drake attempted to refute some of the testimony regarding
her erratic behavior over the past year, but her explanations were not logical. Ms. Drake
stated that her home in Ohio was not in disrepair when she left it, but then could not explain
why the years-old photos that were put in evidence showed similar conditions. She tried to
explain that the “leprechaun” she told her daughter she saw in the hospital was a priest with
a pointy hat who came to take her to the bathroom. She also claimed the doctor did a
somersault over her bed while explaining her insurance benefits.

       The medical evidence showed Ms. Drake suffered from dementia, as her family doctor
reported in her sworn report, and this was confirmed by a letter from her neurologist, as well
as the records from Lakeshore Hospital. In fact, the Lakeshore records showed that the
physician there diagnosed her with a psychotic disorder. Ms. Drake did not dispute the
testimony that she hit her son on the face with a wet house shoe, and admitted that she did
hit him once or twice because she was angry that he wanted to put her house shoes in the
dryer. Lt. Cloer, an independent witness, corroborated the Drakes’ account of this episode
of violence, and testified that he called the sheriff’s department and took part in the decision
to have Ms. Drake transported to the hospital, because he felt she was a danger. The Court
saw and heard all of the witnesses testify, including Ms. Drake, and credited the testimony
of her children and daughter-in-law, as well as Lt. Cloer.

       The Trial Court also had the benefit of the guardian’s report, wherein she detailed her
interviews with other family members and friends, as well as Ms. Drake, and made the
recommendation that Ms. Drake was in definite need of a conservator. The record
establishes the Court had clear and convincing evidence that Ms. Drake was a disabled
person under the statute, and the Trial Court did not err in appointing a conservator for Ms.
Drake.



                                              -3-
       Finally, Ms. Drake argues the Trial Court did not properly consider the Lakeshore
records, which were the “most contemporaneous” records of Ms. Drake’s mental status. A
review of these records shows, however, that they would support the Trial Court’s ruling, as
Ms. Drake’s dementia is mentioned in several places, as is the treating psychiatrist, Dr.
Crawford’s, diagnosis that Ms. Drake suffers from a psychotic disorder. This argument is
without merit.

      The Judgment of the Trial Court is affirmed with the cost of the appeal assessed to
Paula Mae Drake’s Estate.




                                                  _________________________________
                                                  HERSCHEL PICKENS FRANKS, P.J.




                                            -4-
