from Franklin Circuit Court (CV-15-900196).
Nix appeals from a summary judgment entered by the Franklin
Circuit Court finding that he is an adult in need of
protective services under the Adult Protective Services Act
of 1976, §§ 38-9-1 to -11, Ala. Code 1975
("the Act"). We reverse and remand.
Facts and Procedural History
December 7, 2015, the Franklin County Department of Human
Resources ("DHR") filed a petition in the Franklin
Circuit Court pursuant to § 38-9-5, Ala. Code 1975, and
§ 38-9-6, Ala. Code 1975, seeking emergency protective
placement for Nix. DHR alleged that Nix, then 78 years old,
was an "adult in need of protective services" as
that term is defined by the Act. The petition claimed that
Nix had not been taking his medications for diabetes and
hypertension and that he had been the victim of a postal scam
costing him thousands of dollars. DHR further alleged that
Nix urgently required nursing-home care to protect his health
and safety and that, otherwise, Nix was in immediate danger.
DHR requested emergency-protective placement for Nix and that
the court set a hearing pursuant to § 38-9-6 to
determine Nix's need for protective services.
same day the petition for emergency placement was filed, the
trial court entered an order declaring that Nix was indigent,
that he was in need of protective services, and that he
needed a conservator and a guardian to administer his estate
and to see to his medical needs. The trial court ordered DHR
to provide protective services for Nix, appointed a guardian
ad litem to represent Nix in the proceedings, and appointed
Nix's son, Darren Nix, as conservator of Nix's estate
and guardian of his person. The trial court set a hearing on
the matter for December 21, 2015. Nix was removed from his
home and was placed in the Shoals Hospital Senior Care Center
in Muscle Shoals.
December 14, 2015, Nix, represented by his guardian ad litem,
filed an answer to DHR's petition, denying all material
allegations. The trial court set the matter for a jury trial
on February 29, 2016.
January 12, 2016, DHR filed a motion to replace Darren Nix as
Nix's guardian and conservator with the Franklin County
sheriff. DHR informed the court that Darren Nix no longer
wished to serve as his father's guardian or conservator.
DHR also requested that the new guardian/conservator be
allowed to sell Nix's house to pay for his care and that
Nix be transported from Shoals Hospital Senior Care Center to
an assisted-living facility. Nix, through his guardian ad
litem, responded that he had no objection to the removal of
his son as guardian and conservator and the appointment of
the Franklin County sheriff as his guardian and conservator,
but he objected to the sale of his house or any of his assets
"before there has been an adjudication by a jury that
[Nix] is an adult in need of protective services." On
January 13, 2016, the trial court removed Darren Nix as
guardian and conservator and replaced him with the Franklin
County sheriff. The trial court also entered an order
authorizing the newly appointed guardian and conservator to
sell Nix's house at or above fair-market value.
reasons unclear from the record, the case did not proceed to
trial as scheduled on February 29. On May 18, 2016, Nix,
through his guardian ad litem, filed a motion for an
independent mental evaluation. Nix contended that the doctors
who had previously evaluated him were employed or retained by
DHR and therefore were not independent. He also requested
that he be permitted an independent medical exam by a doctor
specializing in geriatrics. Nix alleged that he was
financially able to pay for the mental evaluation. Nix
further requested that the case be set for a final hearing.
On May 23, 2016, the trial court entered an order denying
Nix's request for an independent mental evaluation.
17, 2016, DHR filed a "Petition for the Sale of Real
Estate, " seeking to be allowed to sell Nix's house.
DHR asserted that it had found a buyer for the house and
attached a sales contract showing a $70, 000 purchase price.
DHR contended that the funds from the sale of the house would
be used to pay for Nix's stay at the assisted-living
facility. The trial court granted DHR's petition on June
20, 2016. On June 22, 2016, Nix, through his guardian ad
litem, filed an objection to the sale of his house and a
motion to set the case for trial. Nix argued:
"1. The defendant, Jerry Nix, has been held in the
custody of the Franklin County Department of Human Resources
since December 7, 2015, without a trial in this matter.
"2. The defendant is opposed to his home being sold, and
in the event he is determined not to be an adult in need of
protective services, he would need to be able to return to
"3. Under Code of Alabama Section 38-9-6 the defendant
is entitled to a hearing not more than thirty days from the
filing of the petition, and a jury of six persons shall be
empaneled for said hearing to serve as a trier of facts.
"4. Under Code of Alabama Section 38-9-6(c), the Court
shall give preference in making a determination to the least
drastic alternative considered to be proper under the
circumstances, including a preference for non-institutional
care whenever possible.
"5. Defendant maintains that non-institutional care such
[as] return to his home with home health services would be
proper in this case. Defendant would further consent to a
conservator being appointed to assist the management of his
affairs upon his returning to his home."
response to Nix's objection, the trial court entered the
"The Court has been made aware that [DHR] is filing a
motion for summary judgment. This motion will have to be
ruled on before a final sale of the home can be made. If the
Motion is denied then the Court will address the sale of the
27, 2016, DHR filed a motion for a summary judgment. DHR
requested that the trial court "enter a final order
determining that Jerry Nix is an adult in need of protective
services and ... allowing for the sale of Jerry Nix's
home." DHR contended that the undisputed facts establish
that Nix is an adult in need of protective services under
§ 38-9-6. In support of its motion, DHR attached a
number of exhibits, including the report of a United States
postal inspector stating that Nix had been the victim of an
illegal mail-lottery-prize scam. According to the postal
inspector, Nix had fallen victim to a scam in which he mailed
sums of money to out-of-state addresses known to be
associated with foreign-lottery scams to claim promised --
but nonexistent -- lottery prizes. The postal inspector
stated that some of Nix's mail had been seized by the
United States Postal Service and that "[e]xamination of
the contents of the letters revealed Mr. Nix sent cash,
checks, money orders, and credit card information for the
purpose of claiming prizes." The postal inspector said
it had been explained to Nix that the prize schemes were
fraudulent and illegal and that Nix promised not to
participate further. Nevertheless, Nix continued to send
money to addresses associated with the illegal scheme.
also attached letters and medical records from three of
Nix's physicians who had treated Nix both before and
since he was removed from his home. Each doctor wrote that Nix
was suffering from dementia. Dr. Leonides Santos, Nix's
longtime physician, stated that Nix suffers from "major
neurocognitive disorder" and recommended that he be
admitted to a long-term-care assisted-living facility to
protect him from harm and manipulation. Dr. Timothy L.
Carpenter, the attending psychiatrist at Shoals Hospital
Senior Care Center, wrote that Nix suffers from "Major
Neurocognitive Disorder, Alzheimer's Type." Dr.
Carpenter stated that he believes Nix is at high risk of
being harmed or of harming others and recommended in his
January 6, 2016, letter that Nix be provided a
court-appointed guardian. Dr. Loren McCoy wrote that he
evaluated Nix on January 26, 2016. Dr. McCoy wrote that he
had concluded that Nix was not competent to make decisions
for himself regarding his finances or medical care and that
Nix needed to be in an assisted-living facility.
summary-judgment motion, DHR also argued that the sale of
Nix's house was necessary because Nix's assets were
"depleted to the point that he no longer can afford to
pay to reside at [the assisted-living] facility without
selling his home."
27, the same day DHR filed the motion for a summary judgment,
the trial court entered an order granting the motion and
authorizing the sale of Nix's house to proceed. On June
29, 2016, Nix moved to set aside the summary judgment,
arguing that the entry of the court's order granting
DHR's summary-judgment motion on the date the motion was
filed violated the time and notice requirements of Rule
56(c)(2), Ala. R. Civ. P. The trial court set aside its
summary judgment and set a hearing on the summary-judgment
motion for July 8, 2016.
7, 2016, Nix, through his guardian ad item, filed a response
in opposition to DHR's summary-judgment motion. Nix
argued that under the Act he was entitled to a jury trial to
determine whether he was an adult in need of protective
services. He also argued that, even if he was in need of
protective services, there was no evidence indicating that
institutionalization was the least drastic alternative
available. Nix submitted his own affidavit in opposition to
summary judgment. In that affidavit, Nix testified:
"My name is Jerry Nix and I am over the age of 19 years
and have full knowledge of the matters and facts alleged
"I am currently residing at the Brentwood Assisted
Living facility against my will. Since December 7, 2015, I
have been in the custody of the Franklin County Department of
Human Resources, who placed me at Shoals Senior Care/Shoals
Hospital. I am not an adult in need of protective services. I
disagree with any medical opinion that says I cannot
adequately live at my home alone and take care of myself. My
home is located at 247 Woodmont Drive, Russellville, Alabama.
While I have some minor medical issues, I can live at home
with the assistance of home health services, and make
adequate decisions regarding my care. While I also believe
that I have the ability to manage my assets, I am not opposed
to a conservator, if the Court would allow me to return to my
home. Although I am well aware of the allegations that I have
lost a lot of money due to scams, I do not deny that I have
lost a significant amount of money but it is my money and it
would be no different than if I went to Las Vegas or Tunica
and lost all the money gambling. I simply made some poor
financial decisions but those decisions were not based upon
me being mentally incompetent.
"I am a veteran and fought for my country and feel like
my rights are being taken away from me because the Franklin
County Department of Human Resources believes I cannot take
care of myself the way they see fit. I own my own home, I
have an adequate monthly income, and ...