In the Matter of Conservatorship of Davenport, No. E2004-01505-COA-R3-CV (TN 12/27/2005)
| Decision Date | 27 December 2005 |
| Docket Number | No. E2004-01505-COA-R3-CV.,E2004-01505-COA-R3-CV. |
| Parties | IN THE MATTER OF THE CONSERVATORSHIP OF DORIS DAVENPORT. DORIS DAVENPORT, ET AL. v. RUTH ADAIR, ET AL. |
| Court | Tennessee Supreme Court |
Matthew B. Frére, D. David Sexton, Knoxville, TN, for Appellant, Doris Davenport
Paul T. Coleman, Irmie K. (Ike) Blanton, III, Knoxville, TN, for Appellant, Teddie J. Clark
David O. Day, Edward M. Graves, III, Cookeville, TN, for Appellees
Alan E. Highers, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and David R. Farmer, J., joined.
In this conservatorship case, we are asked to evaluate the probate court's decision that an elderly female was mentally disabled and in need of the court's assistance. The elderly female executed two powers of attorney for health care; one in 1996 and the other in 2003 after the nieces of the elderly female filed their petition in this case to appoint a conservator. The attorney-in-fact under both powers of attorney filed a counter-petition asking the probate court to appoint her conservator over the elderly female. The probate court ruled that the power of attorney executed in 1996 was void due to improper execution and that the power of attorney executed in 2003 was void because it was executed while the elderly female was mentally disabled. The probate court found that the elderly female's nieces and the attorney-in-fact should not serve as conservators in this case. Instead, the probate court appointed the public guardian to serve as the elderly female's conservator. The attorney-in-fact and the elderly female filed an appeal to this Court. We affirm in part and reverse in part.
At the center of the present controversy is Doris L. Davenport ("Ms. Davenport"), an elderly female resident of Crossville, Tennessee born on November 23, 1911. On April 11, 1996, Ms. Davenport executed a document entitled "Durable Power of Attorney" (hereinafter referred to as the "1996 Power of Attorney") which provided, in relevant part, as follows:
I, DORIS L. DAVENPORT, of Cumberland County, Tennessee, in the event that I should become incapacitated, as hereinafter defined, do hereby appoint NOEL D. CLARK, SR., as my true and lawful attorney in fact, if he is unable to serve then I hereby appoint TEDDIE JANE CLARK, as my alternate true and lawful attorney in fact.
. . .
I also express my desire that should a court deem it necessary to commence legal proceedings over my estate and its management, it is my wish that NOEL D. CLARK, SR., serve as my conservator or guardian.
The 1996 Power of Attorney also purported to empower the attorney in fact with the ability to handle Ms. Davenport's financial matters in the event of her incapacitation. Two witnesses signed the following acknowledgment attached to the 1996 Power of Attorney:
I declare that DORIS L. DAVENPORT, is personally known to me, that she signed this Durable Power of Attorney in my presence, and that she appears to be of sound mind and under no duress, fraud or undue influence, I am not the person appointed as agent by this document, nor am I the health care provider or an employee of the health care provider for DORIS L. DAVENPORT.
I further declare that I am not related to DORIS L. DAVENPORT, by blood, marriage, or adoption, and to the best of my knowledge, I am not entitled to any part of her estate under a will now existing or by operation of law.
The notary, who also happened to be one of the witnesses, affixed her signature to the document indicating that she and the other witness subscribed to the aforementioned declaration in her presence. On the same day that she executed the 1996 Power of Attorney, Ms. Davenport also executed the "Doris L. Davenport Revocable Inter Vivos Trust" (hereinafter referred to as the "1996 Inter Vivos Trust") naming Noel D. Clark, Sr. as co-trustee. In 1999, Ms. Davenport named a successor trustee to serve in the event of the death or incapacity of Noel D. Clark, Sr., and she named Teddie Jane Clark ("Ms. Clark") to serve as co-trustee in the event of the successor trustee's death, incapacity, or resignation.
Ms. Clark served as a legal secretary to Noel D. Clark, Sr., Ms. Davenport's attorney, prior to their marriage. In 1999, the successor trustee to the 1996 Inter Vivos Trust resigned. On February 10, 2000, Noel D. Clark, Sr. died, and, as a result, Ms. Clark became the co-trustee over the 1996 Inter Vivos Trust and attorney-in-fact for Ms. Davenport under the 1996 Power of Attorney. In November of 2001, doctors diagnosed Ms. Davenport with having an inoperable brain tumor. Thereafter, Ms. Clark began to take on a more active role in Ms. Davenport's daily care.
On October 15, 2002, Ruth Adair ("Mrs. Adair") and Elizabeth Hollingsworth ("Ms. Hollingsworth"), Ms. Davenport's nieces (hereinafter collectively referred to as the "Nieces" or "Appellees"), filed a "Petition for Appointment of Conservator of the Person and Property of Doris Davenport" in the Probate Court of Cumberland County, Tennessee. Therein, the Nieces alleged that Ms. Davenport suffered from dementia and paranoid delusions from advanced age and was in need of a conservator. The Nieces requested that the probate court appoint them conservators over Ms. Davenport, and they requested that the court appoint attorney C. Douglas Fields ("Mr. Fields") to serve as the guardian ad litem for Ms. Davenport. The Nieces also asked the probate court to order Ms. Davenport to undergo a medical examination, citing her refusal to submit to such examination. The probate court subsequently entered an order directing Ms. Davenport to submit to a medical examination by Dr. Reynaldo A. Olaechea ("Dr. Olaechea") and an order appointing Mr. Fields to serve as guardian ad litem for Ms. Davenport to investigate the Nieces' petition.
Dr. Olaechea subsequently evaluated Ms. Davenport and submitted his report to the probate court indicating that Ms. Davenport suffered from the following medical problems: a brain tumor, an old myocardial infarction, generalized arteriosclerosis, senility, osteoarthritis, and difficulty hearing. Dr. Olaechea recommended that the probate court appoint a conservator for Ms. Davenport because she "is not able to take care of her health or her affairs due to physical and mental handicaps. . . In the event that her mind gets worse, she needs to sign papers for a nursing facility." Dr. Olaechea also noted that Ms. Davenport's brain tumor, while benign, "is growing slowly and may produce severe mental incapacity in time."
On January 7, 2003, Ms. Clark filed a "Petition to Intervene" in the matter noting that, pursuant to the 1996 Power of Attorney, her ability to act as Ms. Davenport's attorney-in-fact could be impaired by a disposition of the Nieces' petition. Ms. Clark also filed a response to the Nieces' petition alleging that Ms. Davenport did not need the assistance of the court, and she asked the probate court to dismiss the Nieces' petition asserting that Ms. Davenport had the requisite capacity to execute the 1996 Power of Attorney and 1996 Inter Vivos Trust. Alternatively, Ms. Clark asserted that, if the court found Ms. Davenport to be in need of the court's assistance, the court should appoint Ms. Clark as conservator for Ms. Davenport because the 1996 Power of Attorney and 1996 Inter Vivos Trust evidenced Ms. Davenport's desire for Ms. Clark to fulfill that role. The Nieces subsequently filed an answer to Ms. Clark's petition and asked the court to dismiss the petition for the following reasons: (1) the 1996 Power of Attorney amounted to a nullity since it was improperly executed, specifically that one of the witnesses was also the notary, and the witnesses did not swear "under penalty of perjury" as required by statute; and (2) Ms. Clark did not have standing to intervene because the Nieces had statutory priority for appointment as Ms. Davenport's conservators. Ms. Clark subsequently filed an amended petition to intervene asserting that the 1996 Power of Attorney and the 1996 Inter Vivos Trust qualified as writings signed by Ms. Davenport, as contemplated by section 34-3-103(1) of the Tennessee Code, thereby establishing her preference for Ms. Clark to serve as her conservator.
In March of 2003, the probate court held a hearing on Ms. Clark's petition to intervene in the matter. Shortly thereafter, the probate court entered an order denying her petition and stating that the 1996 Power of Attorney was "a springing power of attorney with specific conditions precedent incorporated within its terms that by admission have not been met and it is therefore not currently in effect." Ms. Clark subsequently filed a "Motion for Interlocutory Appeal," which the probate court denied.
At some point during the pendency of the litigation, Ms. Davenport secured the services of Dr. Victor Schueler ("Dr. Schueler"), a geriatric psychiatrist and medical doctor. On March 26, 2003, Ms. Davenport filed an answer to the Nieces' petition to appoint a conservator asserting that she did not need the assistance of the court, and she requested that the probate court dismiss the Nieces' petition. On July 17, 2003, Ms. Clark filed a competing "Petition for Appointment of Conservator" in the probate court asserting that, if the probate court found Ms. Davenport to be disabled and in need of assistance, then the court should appoint Ms. Clark as her conservator. In support of her petition, Ms. Clark cited to the directive of Ms. Davenport in the 1996 Power of Attorney. Ms. Clark also noted that Ms. Davenport designated Ms. Clark to serve as her conservator in documents she executed in 2003....
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