By Diane B. Weinberg
In the last two editions of The Passionate Estate Planner,we discussed various aspects of planning for incapacity. We addressed the types of incapacity documents typically used, common mistakes made when planning for incapacity, and the level of capacity needed to execute different types of legal documents.
Today, we are going to address the available legal options when incapacity planning goes awry – guardianship and conservatorship. There is no one reason why incapacity plans fail. Sometimes the individual starts a plan but never actually signs the documents. Sometimes the planning documents only name one agent, and no one can replace that agent when she dies. Sometimes the individual begins to act erratically due to dementia. We have had more than one situation where a client with dementia has withdrawn large sums of money and forgotten where she put it. Sometimes, despite the powers of attorney, the individual falls victim to unscrupulous third parties and less-than-well-meaning family members. Sometimes, no matter how good the documents are, the individual needs court-ordered protection. In each of these circumstances, guardianship and conservatorship provide protection to the vulnerable individual.
1. What are Guardianship and Conservatorship?
I often refer to guardianship and conservatorship (collectively, Guardianship) as the opposite of the 18th birthday. When you wake up the morning you turn 18, you have magic powers that you did not have the night before. In Guardianship, the courts remove these powers and essentially return that individual to the capacity of a minor. Unlike a birthday, the Guardianship process is anything but automatic.
Guardianship is appropriate when an individual (the Proposed Ward) lacks the ability to make or communicate significant responsible decisions about her health or safety (guardianship) or her financial affairs (conservatorship). This does not mean that the Proposed Ward has made a series of bad decisions; all adults have the right to make good and bad decisions, regardless of age. Rather, the Court focuses on the Proposed Ward’s ability to process information that she receives. Can the Proposed Ward understand and evaluate the facts as presented? Once she has the relevant information, can she weigh reasons for and against a certain decision?1 If she makes a decision, does she understand and appreciate the consequences of that decision? If the answer to one or more of these questions is no, then some form of Guardianship is probably appropriate.
Guardianship (formerly known as guardian of the person) addresses the ability to make personal decisions. Here, the Court looks to “guard” the person. A person under a guardianship loses the right to marry, to decide her residence or domicile, and to consent to medical procedures, among others.2
Conservatorship (formerly known as guardian of the property) addresses the ability to make financial decisions. Here, as the name suggests, the Court seeks to “conserve” the individual’s assets. A person under a conservatorship loses a wide variety of rights, for example, the right to make, modify or terminate contracts; to buy or sell property; to bring or defend a lawsuit; or to conduct business transactions.3
Guardianship and conservatorship are distinct processes, and a person who is appropriate for one process may not be appropriate for the other. Also, it is possible for an individual to have a limited guardianship or conservatorship, meaning that the Court has removed only certain individual rights. For example, recently, I helped a client obtain a limited guardianship over her mentally ill daughter. Her daughter lost her right to consent to medical procedures, to establish her residence, and to change her domicile. The daughter retained all other rights, including the right to marry, and she is not subject to a conservatorship.
2. Is The Guardianship Process Complicated?
The Guardianship process is actually fairly straight-forward and involves three parts. Each step contains procedures designed to protect the Proposed Ward’s rights. Probate Courts have exclusive jurisdiction over Guardianship matters.
In the first part of the Guardianship process, the Probate Court reviews the Guardianship petition to ensure that the parties seeking the Guardianship (the Petitioners) have alleged facts sufficient to show why a Guardianship is needed. If the petition is adequate, then the Probate Court orders an evaluation of the Proposed Ward by a professional, such as psychologist or social worker. If the evaluation supports a finding that the Proposed Ward needs a Guardian, then the matter will proceed to a hearing. Even if the evaluator does not recommend a Guardianship, the courts often allow the matter to proceed to hearing for further evidence on the Proposed Ward’s competence.
The Guardianship hearing is a trial where evidence is presented as to why a Guardianship is necessary. In cases where all parties agree that the Proposed Ward needs a guardian or conservator, such as where the Proposed Ward has a severe traumatic brain injury, the parties present evidence of the client’s incapacity at a brief hearing. Where multiple parties seek to be the Proposed Ward’s guardian or where the Proposed Ward challenges her incapacity, the hearings become full-blown litigation, with all the formal procedure and expense normally found in any lawsuit.
3. Does The Proposed Ward Have Any Say As To Who Can Serve As Her Guardian Or Conservator?
Yes. The Probate Court has two related duties with respect to the appointment of a guardian or conservator. First, the Probate Court must review the Georgia code which provides a preference list for who is to serve as the Proposed Ward’s guardian or conservator. At the top of the list is the person nominated by the Proposed Ward in her Durable Financial Power of Attorney or in her Advance Directive. After the person nominated by the Proposed Ward, the Court is then to consider the Proposed Ward’s spouse, adult child, parent, and so forth. The Probate Court must honor the person nominated by the adult unless the Court finds there is “good cause” to select someone else further down on the list.
In addition, the Probate Court must act in the Proposed Ward’s best interest. Thus, the Probate Court may disregard someone higher on the list if, in the Court’s opinion, that person will better serve the Proposed Ward’s interests. Additionally, the “good cause” requirement only applies to the person nominated by the Proposed Ward and not to any other party on the preference list.
4. What Protections Are In Place For The Proposed Ward?
I have yet to encounter a court that treats Guardianship as a routine procedure. The judges are acutely aware that they are removing rights from an individual, and they treat the process with respect.
The drafters of the Guardianship laws also recognize the significance of the procedure and the increased vulnerability of the individual once stripped of her rights. Because of this increased vulnerability, the drafters incorporated a series of protections throughout and after the Guardianship process.
Several of the protections are incorporated at the very beginning of the guardianship process. A petition must be filed by more than one person with knowledge of the Proposed Ward’s condition. It must be filed either by two petitioners or by a petitioner and a physician who has evaluated the Proposed Ward within 15 days of filing the petition. The separate court-ordered evaluation to determine that individual’s ability to care for herself also serves to protect the Proposed Ward.
Additionally, the Proposed Ward’s family or friends are served with copies of the petition to prevent an individual(s) with questionable motivation from taking actions adverse to the Proposed Ward. The Court also appoints an attorney to represent the Proposed Ward during the proceeding. In some circumstances, the Court will appoint a guardian ad litem to address an issue that has arisen during the process or to represent the Proposed Ward’s best interests.
Once a guardian or conservator is appointed, the statute continues to provide protection to the Proposed Ward. The guardian and conservator must file a status report detailing the Proposed Ward’s condition within 60 days of becoming guardian or conservator, as well as annually on the anniversary of the grant of the petition. A conservator must obtain court approval before taking certain actions, such as selling real estate or investing in certain types of securities. Also, the conservator must post a bond for the value of the Proposed Ward’s non-real estate assets. Finally, the Proposed Ward always retains her right to go back to court to sue her guardian or conservator for neglect or other breach of duty.
5. Guardianship Has Its Limits.
When I meet with a client who wants a Guardianship, I first ask what that client hopes to achieve with the Guardianship. Although Guardianship is the final option for incapacity planning, which has failed for whatever reason, it is by no means a solution to every problem. The Proposed Ward does retain certain fundamental rights, and additional actions must be taken to remove these rights.
Guardianship cannot accomplish any of the following goals:
- Force Medical Treatment. Not infrequently, I am contacted by parents who hope to get a guardianship over their adult mentally ill child. Ultimately, these parents want their children to take their medication to stabilize their medical condition. A guardianship allows the guardian to consent to medical treatment; however, the Proposed Ward can still refuse that treatment. An adult can only be forced to take medication against her will if a court finds that the adult is “a danger to herself or others.”
- Remove Voting Rights. The right to vote is governed by the Georgia Constitution, and it can only be removed through a separate process.
- Remove the Ability to Write a Will. As discussed in the December 2013 newsletter, Georgia requires a very low threshold to write a valid will. Even a child of age 14 can write a valid will as long as the child 1) knows she is writing a will; 2) can identify “the objects of her bounty”; 3) roughly knows what she owns; and 4) can form a plan of distribution for the will. Guardianship does not remove the right to draft a will, though the Proposed Ward’s capacity to write the will may be challenged when the will is submitted to probate.
- Interfere with Relationships with Family and Friends. All too often, I encounter situations where an adult child denies a parent access to her other sibling(s). Sometimes the child is protecting the parent, who has been the victim of abuse by the other sibling. More often, the child enjoys using the parent as a pawn in a game of sibling rivalry. The First Amendment of the Constitution of the United States of America guarantees the right of association, meaning that an individual has the right to associate with any person she chooses. Under the guardianship statute, the guardian has the affirmative duty to allow the Proposed Ward to meet with whomever that person chooses. This right can only be modified with another legal action, such as a protective order.
Quite frequently, I receive phone calls from potential clients who have been told that they need a guardianship or conservatorship. Sometimes, these procedures are appropriate; sometimes, other planning is necessary to help that family member achieve her goal. At Morgan & DiSalvo, we help our clients plan for the challenges that aging and incapacity can bring. If you would like to learn more about guardianship or conservatorship and whether this may be an appropriate process for a friend or family member, please contact us at (678) 720-0750, or send an e-mail to Judy Walker at JWalker@MorganDiSalvo.com to schedule an appointment to talk to Diane Weinberg.
1Mary F. Radford, GEORGIA GUARDIANSHIP AND CONSERVATORSHIP §4:1, at 182 (2012-2013 ed.).
2O.C.G.A. § 29-4-21(a).
3O.C.G.A. § 29-5-21(a)