barBITES

from Nashville Bar Journal | April/May 2022

Background Check

COD PUTTANESCA

Ingredients

One (1) loaf ciabatta or French breach 4 cod filets, about 6 oz. each Extra virgin olive oil 2 Tbsp chopped fresh oregano 2 Tbsp chopped fresh basil 3 (or more) cloves garlic, smashed 4 to 6 (or more) anchovy filets 28-ounce can San Marzano tomatoes, diced or crushed 1 tablespoon tomato paste ½ cup pitted kalamata olives 2 Tbsp capers Pinch red pepper flakes (optional)

Directions

Preheat oven to 400 degrees. Slice ciabatta into four (4) 1-inch thick slices (or, slice French bread lengthwise and cut into 4-inches wide pieces). Drizzle lightly with olive oil and sprinkle with oregano and basil. Bake for 15 minutes or until golden brown.

While bread is baking, heat two (2) tablespoons extra virgin olive oil in ovenproof skillet (12-inches or bigger) over medium heat. Add garlic, anchovies, and red pepper and cook about two minutes, until anchovies break down. Don’t let garlic or red pepper burn. Then, add one (1) tablespoon tomato paste and stir until dissolved, one to two minutes.

Add can of tomatoes (undrained) along with olives, capers, and ½ cup water. Cook until simmering, 3 to 4 minutes.

Remove bread from oven. Season cod with kosher salt and fresh cracked pepper and arrange on top of sauce in skillet. Transfer skillet to oven and bake until fish is cooked, 8 to 10 minutes.

After fish is cooked, place slices of bread into four (4) shallow pasta bowls. Top with fish and sauce. Enjoy!

conservator appointed.

What interests of the client must we consider if we are required under Rule 1.14 to consider “best interests”? At the least, we should consider financial, social, medical, and spiritual interests.

Objecting to the Physician’s Report as hearsay without a good reason compromises the client’s financial interests, simply costing money for the hours spent by the doctor, the lawyers, and the court reporter in taking a deposition. There are other ways to over-litigate cases, of course.

We may also need to advocate as to the choice of a conservator. The priority of persons to be appointed is governed by Tennessee Code Annotated Section 34-3-103, which sets out persons chosen in writing by the respondent, the spouse, any child, the closest living relative or relatives, a district public guardian, and other person or persons. Appointment in that order, however, is “[s]ubject to the court’s determination of what is in the best interests of the person with a disability.”41

The statute and our own common sense, then, indicate that our client’s best interests may be affected by the selection of the conservator. A client with dementia, might, for example, want a child who has a history of stealing money to serve as conservator. Other interests besides financial may also be compromised in the selection of a conservator. As examples, I would not advocate for a child with religious objections to medical treatment or the child who opposes the client’s religious choices to be the conservator of the person. I would not advocate for the child who opposes his parent’s same sex marriage to have the right to determine visitation.42

Finally, we might be called to advocate in connection with which rights should be taken away from our clients and vested in a conservator. Again, although we should take into account our client’s wishes and his or her decision-making autonomy, we also have a duty to use our own judgment as to the best interests of our client.

In all of these situations, where our determination of the best interests of our demented client differs from what he or she wants, we have a duty to explain everything. In the words of Rule 1.14, we have a duty “as far as reasonably possible, to maintain a normal client-lawyer relationship with the client.”

In conclusion, the appointment or retention of a lawyer to represent a client in a conservatorship action is a difficult balancing act. But our job is more than simply advocating for whatever a demented person says that he or she wants. We have a duty to advise and inform and, in appropriate cases, to resist requests by our clients that will impair their own best interests. n

BARBARA MOSS is a the founder of Elder Law of Nashville, has been practicing law in Nashville for more than 30 years. She started out as a trial lawyer and now focuses her practice on elder law, conservatorships, probate, estate planning, Medicare and Medicaid.

Endnotes

1 The Nashville Bar Association, as a part of the wonderful continuing education series produced its Historical Committee, presented The Case of Mary Northern on October 16, 2019. (Hereinafter, Mary Northern CLE) All who read this article are encouraged to watch! 2 Mary Northern CLE; State Dep’t of Human Services v. Northern, 563 S.W.2d 197 (Tenn. App. 1978) cert. denied. 3 State Dep’t of Human Services, 563 S.W.2d at 207. 4 Id. 5 Id. at 215; State Dep’t of Human Services, 575 S.W.2d 946 6 Centers for Disease Control and Prevention (“CDC”), available at https://www.cdc.gov/aging/ dementia/index.html 7 Id. 8 Id. 9 Alzheimer’s Association, 2020 Alzheimer’s disease facts and figures 10 Id. 11 State Dep’t of Human Services v. Northern, 563 S.W.2d 197. 12 Tenn. Code Ann. § 34-3-102. 13 Id. §34-1-108, 34-1-126. 14 Id. §34-3-107. 15 Id. §34-1-128. 16 Id. §34-1-107. 17 Id. §34-1-125(a). 18 Id. §34-3-106(5). 19 Id. 20 Id. . §34-1-132. 21 Id. 22 Id. 23 Id. 24 Id. §34-3-105(a). 25 Id. 26 Id. 27 Id. §34-3-105(c). 28 Id.§34-1-126. 29 Id. 30 In re Conservatorship of Groves, 109 S.W.3d 317, 331 (Tenn. App. 2003). 31 In re Conservatorship of Groves, at 333. With regard to legal standards of capacity for specific tasks, the author recommends: American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities (2d Ed. 2021) 32 In re Conservatorship of Groves, at 334. 33 Id. §34-3-105(c). 34 In re: Tennessee Rules of Professional Conduct, filed September 17, 2002, No. M200002416-SC-RL-RL 35 Tenn. Sup. Ct. R. 8, RPC 1.14. 36 Id. Comment (5) 37 Id. 38 On a personal note, I plan to be onery and demented someday. 39 American Bar Association and American Psychological Association, Assessment of Older Adults with Diminished Capacities, p 1 (2d Ed. 2021) 40 Tenn. Code Ann. § 34-3-105(a). 41 Id. §34-3-103. 42 Although the Campbell Falk Act should limit a conservator’s ability to restrict visitation in such a case. Tenn. Code Ann. § § 34-3-107(c).