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In re Conservatorship of Burnette, 2006 Tenn. App. LEXIS 756 (Tenn. Ct. App. 2006)

The trial court’s order replacing a health care agent was affirmed. Resident, an 88 year old Alzheimer’s patient, was unmarried and had no children. He had named his neighbor as his health care agent. There was evidence that the agent had used a power of attorney to make substantial gifts to himself. Following admission to a nursing home, resident’s sister and a niece filed a petition for conservatorship and sought to remove the agent as health care decision-maker. In addition to evidence of the gifts, “[s]everal Manorhouse employees [noticed] physical and hygiene problems with Mr. Burnette when he returned to the facility following time spent with Mr. Jenkins. On at least one occasion in December, 2004, Mr. Burnette returned with several scratches on his hands and knees. He also returned with dried feces in his underwear on this date. On January 6, 2005, Mr. Burnette returned with wounds on his chin and elbow. On this same date, Mr. Burnette returned with dried blood on his shirt and what appeared to be a blood stain on the front of his underwear.” The guardian ad litem inspected the place where home visits occurred and reported it to be run-down and unsafe. The trial court entered an order restraining Jenkins from visiting or being in the vicinity of the resident, revoking his power of attorney and ordering a return of the gifts the agent made to himself. The agent argued on appeal that the trial court committed error by retroactively applying T.C.A. ยง 34-6-204, a code section that authorizes revocation of a health care power of attorney for cause shown. The court of appeals found that the code section was procedural and that it could be applied retroactively. Further, the agent had no vested rights in the relationship. The power of attorney “did not convey a right or contractual commitment that Mr. Jenkins would continue as health care attorney in fact for Mr. Burnette when “good cause” exists for his removal.” The court held that the trial court’s findings demonstrated good cause for removing the agent. Decided: November 29, 2006.

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