Hear Ye, Hear Ye

2022 NBA BOARD OF DIRECTORS Journal

MARTESHA L. JOHNSON, President GULAM ZADE, President-Elect Journal HON. MELISSA BLACKBURN, First Vice President LIZ SITGREAVES, Second Vice President CHARITY WILLIAMS, Secretary FLYNNE DOWDY, Treasurer GIL SCHUETTE, Assistant Treasurer LELA M. HOLLABAUGH, General Counsel JEREMY OLIVER, YLD President MIKE ABELOW, Immediate Past President LORA FOX, First Vice President-Elect MARLENE MOSES, Second Vice President-Elect

BAHAR AZHDARI CHRISTEN BLACKBURN JAZ BOON ERIN COLEMAN RAQUEL EVE OLUYEMO SAM FELKER MANDY FLOYD ELIZABETH FOY MARY TAYLOR GALLAGHER JEFF GIBSON PAZ HAYNES JOSEPH HUBBARD KIM LOONEY JUNAID ODUBEKO KAYA GRACE PORTER MARIE SCOTT TIM WARNOCK LUTHER WRIGHT

NBA TEAM

MONICA MACKIE, Executive Director CAMERON ADKINS, CLE Director ADRIENNE BENNETT CLUFF, Marketing & Communications Coordinator TRACI HOLLANDSWORTH, Programs & Events Coordinator SHIRLEY ROBERTS, Finance Coordinator VICKI SHOULDERS, Membership Coordinator, Office Manager

HAVE AN IDEA FOR AN ARTICLE?

We want to hear about the topics and issues you think should be covered in the journal. Send your ideas to Adrienne.BennettCluff@nashvillebar.org.

In celebration of the American Bar Association’s Law Day, the Nashville Bar Association invites you to join us on Friday, May 6, at the Downtown Renaissance Hotel for our Law Day lunch.

For the latest information, stay tuned to NashvilleBar.org/LawDay. n

NBA “Grand Slam” Tennis Tournament

Join the NBA at Seven Hills Swim and Tennis Club on Saturday, May 14, at 10:00am for a “Grand Slam” Tennis Tournament. We will be playing doubles in a Round Robin tournament. Registrants will be paired up randomly. Entry fee is $30 per person and includes lunch, drinks, and a can of balls. There will be 1st and 2nd place prizes! Register now at NashvilleBar.org/Tennis! n

NBA + NBF Golf Tournament

Get ready for a day on the green with your friends and colleagues on Thursday, May 19, and spend a day putting around in the sunshine at our annual golf tournament. Presented by the NBA and NBF, the tournament will be held at the Hermitage Golf Course in Old Hickory. Range balls will be available beginning at 12:00pm with a shotgun start at 1:00pm. The entry is $160 for NBA members, $180 for non-members, and includes range balls, greens fee, cart, beverages, snacks, and dinner. All registrations must be submitted by Thursday, May 12.

We will have dinner and prizes at the conclusion of play. Prizes for teams and individual contests include longest drive, longest putt, closest to pin, etc. To register your foursome, email Traci with your team member names, or each member may register individually at Nashvillebar.org/Golf. n

Welcome to the NBA!

Congratulations on your membership—thank you for joining the NBA! We look forward to serving you this year and appreciate your support. Visit NashvilleBar.org or contact Vicki.Shoulders@nashvillebar.org with questions or to learn more.

NEW MEMBERS (JANUARY 1 - FEBRUARY 28)

Anthony Adewumi Josh Bolian

Jack Bond

Micah Bradley Ashley Cannon Alex Carver

Mitzi Dorris Karin Dwight Pete Harris

Elizabeth Huertas

Mari Jasa

Cady Kaiman Lindsay Lundeen Katie Miller Trent Norris

Jody O’Brien Nattaly Perryman Toni Rutgerson Kim Spann Kyle Stack Melissa Tribue

Grace Dunn Matthew Mullins Dan Whitaker

Spring Memorial Service

Our Spring Memorial Service will be on Thursday, May 26, 2022, at the Downtown Presbyterian Church. The service begins at 11:00am. We hope you can join in and remember those who have gone before us. Memorial resolutions are presented in honor of those in the Nashville legal community who have recently passed away.

The memorial resolutions are prepared and read on the minutes of the Chancery Court at the service by friends and colleagues of the bench and bar and are added to the NBA’s collection of more than 100 years of resolutions. Family members and friends of the deceased are invited to attend. Visit NashvilleBar.org/Memorial to view a list of those being honored and save your spot today. n

NBA Family Zoo Day

Gather with your lawyer friends and their families on Saturday, June 11, for our Family Zoo Day at the Nashville Zoo. Upon arrival, visit the NBA table between 10:00am and 12:00pm to pick up your tickets and complimentary treats, sponsored by K&L Gates and Nashville Electric Service.

Need Tickets? Email Traci.Hollandsworth@Nashvillebar.org, and let her know how many FREE tickets you need and they will be ready and waiting for you at the NBA table when you arrive. Limit four tickets per NBA member.

Already have tickets or passes? Come by the NBA table to say hello and pick up fun snacks and goodies on your way into the zoo! Visit NashvilleBar.org/Zoo for more information. n

Feature Story | Barbara Moss

THINKING ABOUT MARY NORTHERN: REPRESENTING CLIENTS WITH DEMENTIA IN CONSERVATORSHIP CASES

Those of us who were adults and reading the newspapers in 1978, and especially those of us who were or are lawyers, are still haunted by the case of Mary Northern.1 Mary Northern was a 77-year-old resident of Nashville who was living in a dilapidated home on Gallatin Road. She had no help from relatives and was living in deplorable conditions with her cats and without heat or other utilities. Eventually, she was taken to General Hospital where she was diagnosed with gangrene of both feet resulting from frostbite.2 Ms. Northern refused to agree to have her feet amputated. Physicians determined, and the Chancery Court and Court of Appeals agreed, that Ms. Northern’s life was critically endangered; that she was mentally incapable of comprehending the facts which constituted that danger; and that she was, to that extent, incompetent.3 Affirming the decision of the Chancery Court, the Court of Appeals found Ms. Northern could have exercised her rights to die by stating that she preferred to die rather than have her feet amputated.4 Instead, she strongly wanted to live and to keep her feet, the conjunction of which was statistically improbable. Appeals ensued.5

While the appeals were pending, the flesh around the bones of Ms. Northern’s feet sloughed off. Ultimately, Ms. Northern did not have the surgery and died on May 1, 1978.

Sadly, Mary Northern may or may not have experienced the best possible result in her case. If her feet had been amputated, what type of life would she have had? We will, of course, never know.

There have been many developments since the Northern case 44 years ago, and those developments can inform our representation of clients with dementia in conservatorship cases.

What Do We Know About the Incidence and Cause of Dementia?

The most common type of dementia is Alzheimer’s disease, but other types include vascular dementia, Lewy body dementia, and frontotemporal dementia.6 Dementia is not a part of normal aging.7 The risk factors for dementia are age, family history, race/ethnicity, poor heart health, and traumatic brain injury.8 Age is the biggest risk factor.

Age Percentage of Americans with Alzheimer’s

64-74 75-84

3% 17% 85 and older 32% People younger than 65 can develop Alzheimer’s, but it is much less common, and the prevalence is uncertain.9

An estimated 5.8 million Americans have Alzheimer’s today and that number is projected to grow to 13.8 million by 2050.10

How Was the Legal Framework Changed Since the Northern Case?

The Northern case was brought under then-existing statutes providing for furnishing protective services to elderly persons who lacked capacity to consent.11 The provisions of the Tennessee Code for Conservatorships were not enacted until 1992.

Under current law, an action to appoint a conservator may be brought by “any person having knowledge of the circumstances necessitating the appointment of a conservator.”12 At a hearing no less than seven days or more than 60 days after service on the respondent, the court must find by clear and convincing evidence that the respondent is fully or partially disabled and that he or she is in need of assistance from the court before a conservator can be appointed.13 Rights are then removed from the respondent and vested in the conservator by the order of the court.14 The court is under a duty to impose the least restrictive alternatives consistent with the protection of the person and property of the respondent.15

A guardian-ad-litem is appointed in each conservatorship action.16 The appointment of an attorney ad litem is not uniform but only happens upon the recommendation of the

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We are committed to protecting your clients’ IP assets, leaving you to focus on all other legal matters. Learn more at iplawgroup.com.

Original Thinking. Unique Protection.® guardian-ad-litem or upon the court’s determination that such an appointment is necessary to protect the rights of the respondent.17 Usually, that occurs when the respondent disputes the necessity of a conservatorship. The respondent’s right to have an attorney ad litem appointed is specifically preserved by statute.18 There is no discussion in the Tennessee Code as to the parameters of the attorney ad litem’s representation of a client with dementia.19

The framework for the appointment of a conservator on an emergency basis was not added to the Tennessee Code until 2013.20 Where following the normal time periods for a conservatorship will “likely result in substantial harm to the respondent’s health, safety, or welfare” and no other person is acting in the best interests of the respondent, a conservator can be appointed on an emergency basis.21 The court appoints an attorney ad litem to represent the respondent “immediately upon receipt of the petition.”22 Again, there is no discussion in the statute as to how the attorney carries out that representation, and, therefore, no guidance as to representation where the respondent lacks capacity.23

The Tennessee statute envisions that a physician, or, “where appropriate, a psychologist or senior psychological examiner” will be involved in the process of determining whether a conservator is needed.24 If an examination has been conducted by such a physician or psychological professional within 90 days of the filing of the petition, a sworn report of that examination is submitted to the court with the petition.25 If the respondent hasn’t been examined in that time period or refuses to be examined, the court orders an examination by the respondent’s regular physician or psychological professional or one selected by the court.26

The sworn report of the examination by the physician or psychological professional is required to state the respondent’s medical history, a description of the nature and type of the respondent’s disability, an opinion as to whether a conservator is needed, the “type and scope of the conservator with specific statement of the reasons for the recommendation of conservatorship,” and any other matters the court deems necessary or advisable.27

How Do We Evaluate Persons Subject to a Convervatorship Proceeding?

As the Tennessee statute makes clear, the court has to identify the disabling illness, injury or condition of the person over whom a conservatorship is sought.28 The pivotal issue, however, is whether the “respondent is in need of assistance from the court.”29 The question, then, is the effect the disabling condition has on the capacity of the person for whom a conservatorship is being sought.30

Capacity is not a diagnosis, but rather reflects a person’s ability to perform a specific task.31 In a conservatorship case, the question of capacity is often dual: (1) functional capacity or the ability to take care of oneself and (2) decision making capacity or the ability to make and communicate decisions about caring for oneself and one’s property.32 Obviously, these two types of capacity are interrelated.

The sworn Physician’s Report required by the Tennessee Code requires the physician or psychologist to provide an opinion as to whether a conservator is needed and acts essentially as a re-

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