Elder Law FAX The May 21, 2007, issue of Elder Law FAX, a free newsletter published every other Monday by the Elder Law Practice of Timothy L. Takacs.   "Due Process" Followed in Conservatorship Case Every first year law student becomes intimately acquainted with the term "due process." Due process is fundamental to how we govern ourselves, to our federal system of government, to our rights as citizens and residents, and to the legal obligations we owe others.   Due process permits us free speech, the right to bear arms, the right to be free of search and seizures and from the government taking our property and our lives; and when these liberties are threatened, it is to due process we turn for our protection.   What does due process have to do with elder law? Protective proceedings are often filed against older persons who lack the capacity to manage their property or take care of themselves seeking the appointment of a conservator or guardian.   In a 1998 law review article, two well-known elder law attorneys, Susan Haines and John Campbell, wrote the following about these cases:   "In a 1987 report, the House Special Committee on Aging described the consequences of appointment: 'The typical ward has fewer rights than the typical convicted felon--he can no longer receive money or pay his bills. By appointing a guardian, the court entrusts to someone else the power to choose where he will live, what medical treatment he will get and, in rare cases, when he will die. It is, in one short sentence, the most punitive civil penalty that can be levied against an American citizen.'   "The purpose of protective proceedings is to protect and assist [these] individuals. However, from the perspective of the person to be protected, the appointment of a guardian or conservator can be both harsh and humiliating."   This was the perspective of Dorothy Barron, who was a patient at Centennial Medical Center, which filed an emergency petition seeking to have a conservator appointed for her, contending that Ms. Barron refused to participate in medical treatment and that she was incapable of giving informed consent. The trial court appointed a guardian ad litem and an attorney ad litem for Ms. Barron. Following a hearing, the court appointed a temporary conservator.   Later, the temporary conservator approved a transfer of Ms. Barron to a nursing home. The trial court later dismissed the petition insofar as it sought the appointment of a permanent conservator.   Although Ms. Barron was no longer under the yoke of a conservatorship, nonetheless she appealed to the Tennessee Court of Appeals claiming that in the trial court's appointment of a temporary conservator she was denied due process of law in violation of the Fourteenth Amendment to the United Stated Constitution.   The Due Process Clause of the Fourteenth Amendment of the United States Constitution requires that "deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing." The Centennial Medical Center invoked Tennessee law to get a conservator appointed for Ms. Barron. Was due process of law followed?   Writing for the three-judge court, Justice Charles D. Susano, Jr., affirmed that Ms. Barron had been accorded "due process":   "We do not believe that Ms. Barron was denied due process at any point in these proceedings. In fact, the trial court did everything in its power to assure that Ms. Barron's rights were not violated. Specifically, the court appointed an attorney ad litem to represent Ms. Barron's interests. There is nothing in the record to suggest that Ms. Barron's attorney ad litem was prevented in any way from questioning any of the other parties or witnesses, including HCA and the guardian ad litem. On the contrary, the record supports a conclusion that the attorney ad litem fully and competently protected Ms. Barron's interests, as evidenced by the fact that the attorney ad litem's oral motion to have the petition dismissed insofar as it sought the appointment of a permanent conservator was granted, thereby ending this litigation at the trial level.   "In addition to the foregoing, the court went to the HCA facility so it could talk to Ms. Barron personally. Procedural due process requires fundamentally fair procedures to be employed whenever a governmental entity acts to deprive a person of a right to or interest in life, liberty or property. ... Ms. Barron's due process rights were fully protected."   HCA Health Services of Tennessee dba Centennial Medical Center v. Dorothy Barron, May 18, 2007.