Obtaining a conservatorship over an aging and mentally disabled parent.

Question:

V.B. asks "What exactly would i have to do to get power of attorney over my mother? she is older and has legally been deemed incompetent."

Answer:

First of all, I assume that you are wanting to exercise control over your mother's health care and financial affairs due to the fact that she is mentally disabled and is thus no longer able to make such decisions on her own. If that assumption is incorrect, then please ignore the rest of my answer. However, if my assumption is correct, then a power of attorney will not work because your mother would need to be of sound mind in order to execute the power of attorney. Instead, you will need to obtain a conservatorship over your mother. In order to do so, you will have to have to file a petition with the court, and you will have to have a physician who is willing to state that your mother is currently unable to handle her own affairs. Conservatorship proceedings can be complex, and I would highly advise you to hire an attorney to represent you in the conservatorship proceeding.

I'm back!

I am sorry that it has been so long since my last post. I have been away from the office for the last couple of days, and prior to that I was extremely busy preparing a Rule 11 Application for Permission to Appeal to the Tennessee Supreme Court on behalf of one of my clients. However, I am back now, and I will try to be more diligent about posting regularly on this blog. Keep sending those questions.

Defendant's presence at a civil trial.

Question:

P.M. asks "Is a defendant in a civil complaint required to appear at trial?"

Answer:

Yes, a Defendant must appear at a civil trial if the Defendant wants to avoid having a default judgment rendered against him or her. A Defendant's failure to appear at his or her own trial will most likely result in a default judgment being rendered against him or her.

First Offense DUI penalties

Question:
J.Y. asks "What are the minimum penalties for a first DUI offense?"

Answer:
If you are convicted of a first offense DUI, you will spend anywhere from 48 hours to 11 months and 29 days in jail; you will be required to pay a fine of at least $350.00; you will be required to perform twenty four hours of litter removal; you will be required to attend a DUI School or victim impact panel; and your license will be suspended for one year (although you may be eligible for a restricted license). The State of Tennessee estimates that a first offense DUI conviction could cost you as much as $5,000 or more after all fines and fees have been paid. In addition, your car insurance rates will skyrocket if you are convicted of a DUI.

My new car is a lemon, what can I do?

Question:

D.S. asks: "Several months ago I purchased an automobile from a local dealership. The vehicle has had problems from the get go. It is under warranty, but I keep having to take it back to the dealership. So far I have had to have the car repaired four times, and it has been out of service for nearly two months. I just want to return this vehicle, and get my money back, but the dealership refuses to allow me to do that. What can I do?"

Answer:

In order to answer your question, I would need to know whether or not your vehicle is new. If your vehicle is new, you may have a claim against the dealership under Tennessee's "lemon law," which is codified at Tenn. Code Ann. 55-204-101 et. seq. The Tennessee Consumer Affairs Division website provides an excellent overview of Tennessee's "lemon law," and so rather than re-inventing the wheel, I would encourage you to visit their website for more information on the lemon law.

If your car was not bought new and it was bought "as is with no warranty," then you probably don't have a claim unless you can prove that the dealership committed fraud or that they engaged in an unfair or deceptive practice. An example of either fraud or an unfair or deceptive practice would be if the dealership knew that the vehicle had all sorts of problems, but nonetheless sold you the vehicle claiming that it had been inspected by their mechanics and that it was in good shape. If you can prove that the dealership committed fraud or that they engaged in an unfair or deceptive practice when they sold you your automobile, then you may have claims against the dealership under either the common law tort of fraud or under the Tennessee Consumer Protection Act, which is codified at Tenn. Code Ann. 47-18-101 et. seq.

Because of the strict time limits associated with taking any of the above actions, I would encourage you to contact an attorney immediately for more information.

Old Debts from a Prior Marriage

QUESTION:

P.W. asks "I was divorced over a year ago. In the divorce papers, my ex-husband agreed to pay off a credit card bill that was in both of our names. The divorce papers said he would hold me harmless for this debt. But now I am getting collection calls. Am I still liable for this debt?"

ANSWER:

Unfortunately the answer to your question is yes. You are still contractually liable for this credit card debt because the final divorce decree was binding on only you and your ex-husband and not on the credit card company. As such the credit card company can still go after both you and your ex-husband for the unpaid debt. Your best recourse is to enforce the terms of your final divorce decree by going after your ex-husband for this unpaid debt. If he continues to fail to pay the debt you may be able to have him held in civil and/or criminal contempt. You should contact an attorney about what actions can be taken in order to force your ex-husband to pay this old marital debt.

Statute of Limitations in Personal Injury Cases

Question:

D.L. writes "I was hit in the back by a pick-up truck earlier this year, and I had to go to the E.R. and get some treatment for my back pain. The pick-up truck driver's insurance paid to fix my car, but they continue to give me the run around about paying for my medical bills. I don't want to file a lawsuit, but if they keep giving me the run around, I may have no choice. I don't have any health insurance and I can't afford to pay for these medical bills myself. How long do I have to file a lawsuit?"

Answer:

D.L., you have one year from the date of your accident to file a lawsuit in personal injury cases involving allegations of negligence. If you fail to file your lawsuit within one year, then your personal injury claim will be time barred. Additionally, if this accident was the result of this pick-up truck driver's negligence, then you not only have the right to recover your medical bills, but you can also recover any lost wages that you suffered as a result of this accident as well as compensation for the pain and suffering that you have experienced. You really need to talk to an attorney ASAP in order to protect your legal rights.

Expungement of Old Arrest Records

Question:

R.G. asks: "I was arrested several years ago in Davidson County, and I entered into a deal with the D.A. that allowed my charges to be dismissed so long as avoided picking up any new charges within the following year. I never picked up any new charges, and the charges against me were dismissed. However, when my employer performed a background check on me recently, this old charge showed up, and even though it had been dismissed I still had a lot of explaining to do to my employer. Can I get this charge removed from my record?"

Answer:

Yes, so long as your charges were in fact dismissed and there was never a conviction entered in your case, you are entitled to have these charges expunged from your records. See Tenn. Code Ann. § 40-32-101. However, there may be a filing fee depending on how the charges were dismissed. From your question it is not clear whether you entered into an informal agreement with the D.A. to set your case off for a year prior to simply dismissing your charges so long as you stayed out of trouble or you entered into a formal pretrial or judicial diversion. If you entered into a formal pretrial or judicial diversion, then there will be a $ 50.00 filing fee in addition to any attorney's fee that you will have to pay when hiring an attorney to assist you.

Surrendering Parental Rights/Adoption

QUESTION:

C.S. writes: "I have a question regarding adoption/custody between here and Maryland. If a mother and father are in the process of divorcing and the mother is willing to give a child up for adoption, what would her options be? The father is in Maryland and mother is in Tennessee. The couple who want to adopt this child also live in Tennessee. The mother has 3 other small children and know that a couple could provide a safer, better environment for the child. She wants to give up the for adoption, but the father refuses."

ANSWER:

Well first off, it would be important to know what kind of relationship that this father has with his child. In this case, if the father has either joint custody or regular visitation with his child and there is no reason to believe that he is an unfit parent, then there probably isn't much that the mother can do to facilitate an adoption. Parents have an absolute right under both the Tennessee and federal constitutions to provide for the care and custody of their children, and this right can only be impeded if it is shown by clear and convincing evidence that parent is placing his or her child in some sort of danger through abuse or neglect.

However, if the father has not been a part of this child's life, (i.e. does not have custody or regular visitation), the mother is willing to surrender her rights, and there are statutory grounds supporting termination of the father's parental rights, then an adoption by prospective adoptive parents may be possible. In Tennessee in order for a child to be adopted, prospective adoptive parents must file a petition for adoption and both of the child's natural parents rights must be terminated. This termination can be accomplished through either a voluntary surrender or an involuntary termination of parental rights. A surrender is a voluntary relinquishment of rights by a parent. See Tenn. Code Ann. § 36-1-112. An involuntary termination of parental rights occurs after a court proceeding at which the petitioner seeking to terminate parental rights is required to prove the existence of statutory grounds for termination and that termination is in the best interests of the child. See Tenn. Code Ann. § 36-1-113. Terminating a parent's parental rights is difficult because the law presumes that natural parents are fit to provide for the care and custody of their children, and those alleging otherwise must prove both that there are statutory grounds supporting the termination and that the termination is in the best interests of the child by clear and convincing evidence. There are several statutory grounds for termination, and it would take several pages to thoroughly explain all of the various grounds for termination. Some of the most commonly used grounds are abandonment (i.e. a parent's wilfull failure to visit or provide support for his or her child), persistent conditions which make it unsafe for a child to return home at the present date or at any time in the near future, incarceration for a period of ten (10) or more years where the child is under eight years of age, and severe child abuse. I would need more facts about the father's situation before even trying to venture into determining whether or not there may be grounds to terminate his parental rights. Even assuming that the father's parental rights can be terminated, and that the mother doesn't back out at the last minute, the prospective adoptive parents home would have to be approved by the trial court before the adoption could go through.

I hope that this answer was helpful.

Preferences of children in child custody cases

Question:
R.R. asks "Will the Court consider the preferences of my child when making a child custody decision?"

Answer:
The answer to your question depends on the age of your child. In Tennessee, when making an initial child custody determination between two parents, courts must consider the preferences of a child who is twelve years old or older. See Tenn. Code Ann. § 36-6-106(7)(A). Courts may hear the preference of a child under twelve years of age, but they are not required to do so. See Tenn. Code Ann. § 36-6-106(7)(B). In any event, the preference of a child is just one of many factors that courts considers when making a child custody decision. The statory list of factors that courts consider when making child custody determinations can be found at Tenn. Code Ann. § 36-6-106.