In re Conservatorship Cole


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Docket Number: 2005-CA-02243-COA

Court of Appeals: Opinion Link
Opinion Date: 06-05-2007
Opinion Author: CHANDLER, J.
Holding: Affirmed

Additional Case Information: Topic: Wills & estates - Conservatorship - Conflict of interest - Expert testimony - Hearsay - M.R.E. 703 - M.R.E. 702
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ.
Non Participating Judge(s): ROBERTS, J.
Procedural History: Bench Trial
Nature of the Case: CIVIL - WILLS, TRUSTS AND ESTATES

Trial Court: Date of Trial Judgment: 11-07-2005
Appealed from: Lauderdale County Chancery Court
Judge: Jerry Mason
Disposition: SON APPOINTED CONSERVATOR OF FATHER'S PERSON AND GUARDIAN AD LITEM APPOINTED CONSERVATOR OF FATHER'S ASSETS.
Case Number: 04-913-M

  Party Name: Attorney Name:  
Appellant: IN THE MATTER OF THE CONSERVATORSHIP OF STOVEN COLE: JONATHAN COLE




E. MICHAEL MARKS JULIE ANN EPPS



 

Appellee: LARRY COLE ROBERT JAMES BRESNAHAN LESTER F. WILLIAMSON  

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Topic: Wills & estates - Conservatorship - Conflict of interest - Expert testimony - Hearsay - M.R.E. 703 - M.R.E. 702

Summary of the Facts: Jonathan and Larry Cole are the only children of Stoven Cole. Larry Cole filed a complaint requesting that the court establish a conservatorship for Stoven. Larry requested appointment as the conservator of Stoven's person and estate. Jonathan filed an answer and defenses to the complaint and a counter-complaint alleging he should be appointed the conservator of Stoven's person and estate. The chancery court ordered that Larry and Jonathan each file an accounting of the assets of Stoven Cole known to them. The court appointed Lester Williamson as guardian ad litem and ordered him to undertake an investigation of funds received by Stoven and his deceased wife as settlement for their injuries from an automobile accident. The chancellor found that, due to Stoven's advanced age, physical incapacity, and mental weakness, he was incapable of managing his estate and also needed someone to be in charge and custody of his person. The court found that, though Larry had personal habits that could pose a risk to Stoven, the appointment of Larry as temporary conservator of his father's person was in his best interest due to Larry's prior care for Stoven without adverse consequences. The court found that Jonathan would have a conflict of interest in serving as conservator of Stoven's estate because he was indebted to the estate for the tax consequences from the transfers of the annuity. The court further found that Jonathan had not responsibly managed Stoven's investments. Accordingly, the court appointed the GAL, Lester Williamson, as the conservator of Stoven's estate. Jonathan appeals.

Summary of Opinion Analysis: The chancellor found Jonathan unqualified to serve as conservator of the estate due to a conflict of interest because Jonathan was indebted to the estate for the taxes from annuity transfers. The chancellor also declined to appoint Jonathan upon a finding he had mismanaged his parents' settlement funds over which he had influence and control. Jonathan argues that there was no disqualifying conflict because the reason he had the funds transferred from Stoven's name into his own name was to prevent Larry from dissipating the funds. He argues that the law should favor the appointment of a qualified family member and that the chancellor abused his discretion in appointing the GAL when he, a qualified family member, was available. While Jonathan's testimony was evidence that, in transferring the annuity into his name, he acted with the good faith intention of protecting Stoven's assets, by court order Jonathan is indebted to Stoven's estate for the tax consequences of the transfers in the amounts of $34,627.36 and $48,814.01 and for the $5,000 which he used to pay his attorney. Therefore, Jonathan's interests stand in opposition to those of the estate which he intends to administer. In addition, the facts indicate potential overreaching by Jonathan. Thus, the chancellor did not manifestly err in finding that Stoven's best interest would be served by appointing Williamson rather than Jonathan as conservator of his estate. Jonathan also argues that the chancellor erroneously appointed Larry instead of Jonathan as the temporary conservator of Stoven's person, because Larry abused alcohol and smoked cigarettes in Stoven's house, while Jonathan is a registered nurse who understands the care Stoven needs and can provide that care. It is apparent that, after considering and weighing all of the evidence, the chancellor believed that Stoven's preferences and the prior success of his living arrangement with Larry outweighed the potential dangers posed by Larry's personal habits. This determination was well within the chancellor's discretion to make and was not manifestly erroneous. Jonathan also argues that the court abused its discretion in excluding his testimony about Stoven's medical conditions on the basis of hearsay because he was an expert witness in the field of nursing and, pursuant to M.R.E. 703, he could testify about physicians' diagnoses upon which he reasonably relied in forming opinions about Stoven's illnesses. However, the trial court never accepted Jonathan as an expert witness in the field of nursing under M.R.E. 702. Therefore, Jonathan was a lay witness not subject to Rule 703 and there was no abuse of discretion in the trial court's exclusion of his testimony on the basis of hearsay.


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