Appellant, previously co-conservator for Annette H. Cross, was removed due to conflicts with his cousin. He sought reinstatement as conservator but the trial court appointed Robert T. Condo as an independent conservator, citing Appellant's prior removal, his distance from the respondent, and the fact that Appellant’s mother was already conservator of the person. The court found no abuse of discretion in this decision.
The procedural history includes a 2000 petition for conservatorship by Denise Pinson and Cleveland Gibbs, leading to their appointment as co-conservators. Due to ongoing issues, they were replaced in 2001 by Tyrone J. Paylor and Theresa Gibbs. In 2007, a motion from Theresa Gibbs sought to change conservators, resulting in Cleveland Gibbs also petitioning for appointment in 2008. The trial court ultimately found Cleveland Gibbs unsuitable due to his prior removal, geographical distance, and potential conflicts of interest.
Cleveland Gibbs appealed, raising issues about the court's alleged disregard for the preference of relatives as conservators, failure to appoint a guardian ad litem, and lack of protection for the ward’s estate. The court affirmed the probate court's decision, clarifying the different standards of review applicable to legal, factual, and discretionary determinations in conservatorship petitions.
In Crumley v. Perdue, the Tennessee Court of Appeals outlined key principles regarding the standard of review for trial court findings and the role of conservators. Factual findings by a trial court are presumed correct and can only be overturned if the evidence preponderates against them, meaning it must support an alternative finding with greater convincing effect. Legal conclusions are reviewed de novo, without any presumption of correctness, while discretionary decisions are evaluated under an abuse of discretion standard.
The court emphasized that conservators hold a fiduciary position and act as agents of the court, which retains ultimate responsibility and control over them. The court can modify or discharge a conservator if they fail to meet their obligations or act in the best interests of the ward, as per Tennessee Code Annotated § 34-3-108(a). The selection of conservators is largely at the discretion of the appointing court, and appellate courts will only intervene in cases of clear abuse of discretion. The appellant contended that the trial court overlooked the statutory preference for relatives to serve as conservators.
Appellant argues that appointing an independent conservator for the ward is unnecessary, referencing Tennessee Code Annotated section 34-3-103, which outlines that the court must determine the best interests of the disabled person before appointing a conservator from a prioritized list. This list includes the designated person by the alleged disabled person, their spouse, children, closest relatives, and others. Cleveland Gibbs claims a statutory preference for appointment as the ward's nephew, but Robert Condo counters that Gibbs is not the closest relative since the ward's sisters are alive, thus lacking priority. The trial court determined that an independent conservator is in the ward's best interest, finding Gibbs unsuitable due to previous removal as conservator, his residence in Nashville, and the fact that his mother acts as conservator of the ward's person. The court's finding is deemed appropriate, and no abuse of discretion is recognized. The statute prioritizes relatives but allows the court's discretion in determining the best interests of the disabled person, making further discussion on the definition of closest relatives unnecessary.
Additionally, Appellant contends that the trial court erred by not appointing a guardian ad litem for the respondent. Tennessee Code Annotated section 34-3-108 allows for the discharge or modification of a conservator if the respondent is no longer disabled or if it serves the respondent's best interest. It mandates a hearing where the respondent retains rights specified in section 34-3-106, including the right to a hearing on disability, to present evidence, to cross-examine witnesses, to appeal decisions, to attend hearings, and to have an attorney ad litem appointed for advocacy.
Appellant argues that although a guardian ad litem is not explicitly required by the statute for removing a conservator and appointing a successor, section 34-3-108(c) preserves the rights of a ward akin to those in an original petition, which includes the appointment of a guardian ad litem. However, Tennessee law, specifically section 34-3-108, limits the rights of respondents in conservatorship modifications to those defined in section 34-3-106, which does not include a guardian ad litem. The principle of expressio unius est exclusio alterius suggests that the legislature intended to restrict the guardian ad litem requirement to the original fiduciary appointment. The trial court's failure to appoint a guardian ad litem is deemed correct.
Regarding the protection of the ward's estate, Appellant claims the trial court failed by appointing an independent conservator instead of him, despite his willingness to serve without a fee. The court’s appointment decisions are not overturned unless there is an abuse of discretion. The trial court justified appointing an independent conservator due to a history of conflicts among co-conservators and concerns about Cleveland Gibbs's ability to act independently in financial matters involving the ward. The court concluded that an independent party with financial experience was a more suitable choice. There is no finding of abuse of discretion in the trial court's decision, and thus the probate court's ruling is affirmed. Costs of the appeal are assigned to Appellant and his surety, with execution allowed if necessary. The trial court's minor misstatement regarding past conflicts involving Cleveland Gibbs does not alter the conclusion regarding its discretion in appointing a conservator.
