Nashville Probate Committee Hosts Judge Kennedy

       Today, the Nashville Bar Association Probate Committee had the pleasure to have Davidson County's Probate Judge Randy Kennedy speak at our monthly meeting.  Various topics were discussed including new procedures for his courtroom and advice/tips for petitions to probate wills, specifically lost wills. But the bulk of the discussion involved the Judge discussing the proposed amendments to the State of Tennessee's Conservator and Guardianship laws.  Judge Kennedy summarized many of the changes and possible ramifications.  Overall, his main message was for the Tennessee bar members to read through the legislation and submit any comments, concerns, and questions to the legislature.  

       The Tennessee Bar Association is putting together a committee to research the new proposed amendments and submit a report discussing the positions of the probate bar.  A future article will include a more thorough discussion of the amendments and the specific provisions and their potential ramifications.  If interested, the following are links to the proposed amendments:

http://www.capitol.tn.gov/Bills/107/Bill/SB2519.pdf

http://www.capitol.tn.gov/Bills/107/Bill/SB2398.pdf

http://www.capitol.tn.gov/Bills/107/Bill/HB2456.pdf

Differing Standards of Proof

       One interesting issue that can be found in the Tennessee Probate Court is the fact that two very similar cases have different standards of proof. The primary difference between these cases is that in one case the State of Tennessee is the Plaintiff, whereas in the other, a private party is the plaintiff. The areas of law involved here are Conservatorships (T.C.A. 34-3-101 et seq) and Adult Protection (T.C.A. 71-6-101 et seq). To summarize, a conservator is a person put in charge of another's (the conservatee) finances and even medical decisions if the conservatee is unable to take care of himself. This is different than a Power of Attorney, which is voluntary, where in a Conservatorship, the plaintiff brings an action nominating a Conservator to take care of the Respondent because the Plaintiff believes that the Respondent is unable to take care of himself.

       Now when a private party brings an action to appoint a Conservator for the Respondent the standard of proof for the Plaintiff is by “clear and convincing” evidence (see T.C.A. 34-1-126).  However, when the State of Tennessee, through the Department of Human Services, brings the similar action of Adult Protection, the standard to be used is by a “preponderance of the evidence” (see T.C.A. 71-6-124(5)(A),(B)).  An Adult Protection is where the Department of Human Services brings the action as the plaintiff believing that the Respondent is being abused, neglected (including self-neglect) or exploited because of any mental or physical disabilities.  

       Therefore, if you find yourself involved in either of these cases be sure that you recognize the difference because depending on which standard of proof is being used in your case can make the difference to whether an individual's right to make decisions on his own behalf is taken away or not.

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