Saturday, May 22, 2010

Nashville musician stripped of rights after being declared mentally disabled; advocates say it's an example of abuses in courts nationwide

From The AP:

NASHVILLE, Tenn. — A court stripped away songwriter Danny Tate's (pictured) control of his life — removing his right to make his own legal, financial and medical decisions — at a last-minute hearing he didn't know about and didn't attend.

With the drop of a gavel, the Nashville musician who'd written a top 10 hit and was making around $125,000 a year writing music for TV shows was declared mentally disabled and in need of someone to manage his affairs. The decision was made at an "emergency hearing" with no medical testimony and no lawyer to represent Tate's interests.

When Tate finally got his day in court three weeks later to challenge allegations that he was in the grip of a life-threatening drug addiction, the judge refused his request for a lawyer and he had to represent himself.

He was again declared disabled, handcuffed and put in a locked psychiatric facility for six days.

"What they've done to me is wrong, and it shouldn't ever happen to anyone again," the songwriter said.

Advocates for people declared legally unfit to manage their own affairs say the songwriter's case is a troubling example of abuses found in the courts nationwide.

Among the problems they see: people stripped of their rights on questionable evidence, deprived of a lawyer, subjected to emergency hearings when there is no true emergency and losing their life savings.

Such complaints prompted the U.S. Senate Special Committee on Aging to order an investigation into the concerns. That investigation is currently being conducted by the U.S. Government Accountability Office.

In Tennessee, a person who manages the affairs of a disabled adult is called a conservator. Other states call these people guardians.

Tate, 54, says what was done to him at the emergency hearing Oct. 23, 2007, crippled his ability to mount a defense in a yearslong legal battle to restore his rights.

Davidson County Circuit Court Judge Randy Kennedy named the songwriter's older brother, David Tate, 60, as his conservator. That gave the older brother access to the younger brother's savings — more than half a million dollars — to pay for the lawyers to keep the conservatorship in place. In effect, Danny Tate has been forced to pay for the legal fight to oppose his own legal claim.

About the only thing the brothers can agree on is that Danny Tate was addicted to crack in 2007 and is now clean and sober. The addiction was bad enough that the songwriter granted his brother temporary power of attorney to pay his bills while he went into drug rehab.

"He was trying to kill himself with crack," the brother said.

Danny Tate was one of the writers of "Affair of the Heart," a top 10 hit for Rick Springfield in the '80s. He made most of his money writing music that appears during segments on popular TV shows, including "The Ellen DeGeneres Show," and "Entertainment Tonight."

The son of an Arkansas minister, Danny Tate had wrestled for much of his life with alcohol and cocaine. He had made repeated but failed attempts to get a grip on his addiction when court proceedings began against him in October 2007.

That was when David Tate filed a court petition claiming his brother was spending between $500 and $800 dollars a day on crack.

David Tate asked the judge to appoint him as Danny's conservator, to help him get treatment and preserve the songwriter's assets. The brother filed a statement from one of the songwriter's financial accounts showing large withdrawals of funds.

An attorney who now represents Danny Tate said the petition that led to the emergency hearing was based entirely on unsubstantiated allegations by the brother.

"It's scary," Michael Hoskins said. "All you've got to do is make the allegation" to force someone into a conservatorship.

Being a drug addict or alcoholic alone is not grounds enough to be declared mentally incompetent, legal experts say. The question is whether the addiction was so disabling that he could no longer manage his own affairs.

Danny Tate, a tall man who chain smokes and now lives by the credo of Alcoholics Anonymous, maintains that he was a functioning addict and was not in a crisis so severe that a court would have grounds to hold a hearing without him and strip him of his rights.

He said there were no claims that he'd ever been arrested, overdosed on drugs, been committed to a psychiatric ward or hurt anyone. Only that he'd been spending lots of money on drugs and his brother feared his habit would kill him.

His case, Danny Tate says, should serve as a stark warning about how easy it is to have someone declared disabled and should be chilling to anyone in Nashville's music industry with an addiction and some money.

"If this could happen to me, they'd have to bust 75 percent of Music Row and go down before Randy Kennedy for a mass conservatorship hearing," the songwriter said.

He is gearing up for a May 24 hearing to determine whether he is competent to take charge of his life again.

This time he'll have a lawyer.

The upcoming hearing was ordered by the Tennessee Court of Appeals in December after the songwriter argued he was entitled to a chance to get out of the legal arrangement or appeal it.

David Tate won't say whether he will ask the judge to keep him in charge of his brother's affairs. He maintains that he stepped in to save his brother's life.

More than $200,000 has been spent on legal fees so far, court records show. The upcoming hearing is expected to eat up thousands more.

Court records show that Tate had more than $600,000 in a money market account and was receiving about $125,000 a year in music royalty payments when the court proceedings began.

He will likely be in debt after the hearing, Hoskins said.

Unlike other court battles where each side pays its own legal fees, in a conservatorship proceeding a disabled person who has money pays for both sides. Every time Danny Tate's brother files a motion it comes out of Danny Tate's life savings.

"That's the worst part of it. They're paying these people to harm them," said Elaine Renoire, president of the Indiana-based National Association to Stop Guardian Abuse. The organization is supporting the songwriter in his legal battle.

David Tate, who runs a corporate logo and merchandising company in Memphis, is not accused of trying to enrich himself at his brother's expense. However, the outright theft of assets or questionable billing practices by lawyers and guardians has long been a concern of advocates and is part of the GAO study.

Renoire says she has no idea how prevalent guardian abuse is because the records simply don't exist. Many courts don't keep records on how many of these cases they have.

A December 2007 report by the U.S. Senate Special Committee on Aging found numerous problems with conservatorship cases nationwide despite reforms specifically pointed to emergency hearings. "Emergency appointments, by their nature, immediately deny prospective wards their due process," the report said.

The AARP says people often aren't offered sufficient legal protections.

"Due process in the guardianship system has always been a substantial concern," said Sally Hurme, an attorney and senior project manager with the AARP.

The organization recommends granting the allegedly disabled person the right to come to a hearing, requiring notice of an emergency hearing and an explanation of the emergency, and mandating that a lawyer always be appointed as an advocate for someone said to be disabled.

Hoskins said he believes Danny Tate's case never would have gotten this far if Tate could have gotten a good lawyer from the start.

Unlike the right to counsel in criminal cases, the right to a lawyer in civil cases like conservatorship proceedings is not constitutionally guaranteed.

But that doesn't mean it shouldn't be, said Chris Slobogin a Vanderbilt University Law School professor who is an expert in mental-health law.

"I think there's a good argument to be made that when a person's property and possibly his liberty is going to be deprived by the government, there should be a right to counsel even if the proceeding is not criminal in nature," Slobogin said.