How do nursing homes get paid? Sick people go to nursing homes and sick people die. According to the American Health Care Association, “Medicaid is the primary provider of coverage for nearly two out of every three (63 percent) nursing home residents,” although in Georgia the figure is 71%. One reason why residents turn to […]
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Some Medicaid classes of assistance do not require verification, but most long-term care classes of assistance do. Verification documentation includes financial and non-financial information. Sometimes, tracking documentation down can be problematic. If you’re having trouble getting documentation, especially when a caseworker demands it on an unreasonable time-table, here’s what the manuals say: You are not […]
The Estate Recovery Rules vary from State to State. The federal minimum requires states to pursue recovery from the probate estate for medical assistance paid for most long-term care classes of assistance received by individuals 55 years of age and older. Federal law permits enhanced estate recovery, which would reach non-probate assets, and some states […]
Georgia Guardianship law presupposes that the guardian must act in the best interests of the Ward. In that regard, O.C.G.A. § 29-4-20 states certain rights the Ward has. O.C.G.A. § 29-4-20 provides: (a) In every guardianship, the ward has the right to: (1) A qualified guardian who acts in the best interest of the ward; […]
Medicaid is the payer of last resort so applicants have, historically, been required to apply for all other benefits before seeking Medicaid eligibility. On March 12, 2025, Georgia issued the following Memorandum changing that rule: The purpose of this memorandum is to provide notification of the elimination of the “Application for Other Benefits” policy requirement. […]
Effective January 1, 2026, the Community Spouse Resource Allowance will increase to $162,660.00. The combined resource allowance will increase to $164,660.00. The Community Spouse income allowance will increase to $4,066.50. The SSI monthly rate in 2026 will be $994, so the 2026 Medicaid income cap will be $2,982. In general terms, all 2025 rates and […]
In some cases, no one can be found who will consent to medical procedures for a patient. O.C.G.A. § 29-4-18 provides a solution by allowing any interested party to file a petition to become a temporary medical consent guardian. It is worth noting that “a temporary medical consent guardian shall not be authorized to withdraw […]
If an emergency guardianship is warranted, O.C.G.A. § 29-4-16 sets the requirements for how the hearing is conducted. O.C.G.A. § 29-4-16 provides: (a) The court shall conduct the emergency guardianship hearing, at the time and date set forth in its order, to determine whether there is clear and convincing evidence of the need for an […]
In Matter of Doze, 717 SW 3d 240 (2025), a Missouri Court affirmed the decision below appointing Queen Doze’s father as her guardian. The case began when Queen’s sister, Mariah Doze, filed a Petitioner for Appointment of a Guardian and/or Conservator. Mariah alleged that her sister, who was 21 years old, had an “intellectual disability […]
All things being equal, a Petition for Emergency Guardianship should be denied in favor of a permanent petition. The reason is because emergency petitions are usually ex parte proceedings while the permanent petition allows all interested parties to present their arguments. O.C.G.A. § 29-4-15 provides: (a) Upon the filing of a petition for an emergency […]
In Estate of Sanders, decided on April 8, 2025, Mollie Anne Sanders, surviving spouse of Tony Lee Sanders, filed a Petition for Year’s Support. In her Petition, she asked the Probate Court to set-aside property located at 538 Zoie Lane, Palmetto in Fulton County for her support. Tony had two adult children from a previous […]
Petition for Appointment of Emergency Guardian An emergency petition usually begins as an ex parte proceeding. In limited circumstances, an emergency guardianship is necessary. However, in most cases, the petition should be denied in favor of a permanent petition under O.C.G.A. § 29-4-10. In In re Farr, 322 Ga. App. 55 (2013), the probate court […]
How the Phrase “Other Obligations” Made Special Needs Trust Invalid Christopher W. G was denied Supplemental Security Income when his conservator initially filed an application on January 25, 2022. Reconsideration was denied on August 17, 2022. The conservator requested a hearing which was conducted on June 6, 2023. After the hearing, “the ALJ issued an […]
Requirements of Order Granting Guardianship The Order included with Standard Form 12 includes the required elements found in O.C.G.A. § 29-4-13, but it should be modified as appropriate. For example, if there is a mediated resolution, the terms of the settlement should be incorporated into the Final Order. O.C.G.A. § 29-4-13 provides: (a) The court […]
Judicial Review of Pleadings and Evaluation Report The prejudice is that petitions for guardianship and conservatorship should be denied. That is why clear and convincing evidence is required before one may be imposed. In Bookholdt v. Brown, 224 Ga, 737 (1968), the Court said: “Among our most cherished rights, as American citizens, are the freedom […]
Can I help my parent create a Will? The answer is yes and no. Yes, you can help to the extent your help is requested. No, you cannot substitute your desires and goals for those of the person executing the Will. You cannot execute a Will for someone else. However, you can assist your parent […]
Prerequisite Judicial Finding of Probable Cause The presumption under Georgia law is that a guardianship is unnecessary and should be dismissed unless clear and convincing evidence is produced to support prerequisite judicial findings. For that reason, subsection (b) requires dismissal if the Court’s initial review of the Petition finds there is no probable cause to […]
Last updated 9/5/2025 Petition for Appointment of Guardian In Georgia, a Petition for Guardianship is filed on Georgia Probate Standard Form 12. Care should be used because the forms are updated from time to time. As pointed out in other cases, an objection is not a Petition. The standard form generally requires a response to […]
The ultimate test in determining who should be appointed as guardian is “who will best serve the interest of the adult.” There is, however, a priority list. Certain persons, if they seek to be appointed, may only be disregarding “upon good cause shown.” Since most guardianship hearings are audio recorded, caseful counsel will want to […]
There are times, especially when probating older Wills, when you need signatures from the subscribing witnesses, but you can’t find them. Maybe they’ve died or they moved away. Maybe the signatures were illegible, and you don’t have good contact information. In cases like this O.C.G.A. § 53-5-24 provides for a workaround. Specifically, it provides: When […]
Only individuals or the Department of Human Services may serve as guardian. Although not expressly spelled out, only someone capable of fulfilling the duties of a guardian may serve, as explained in In re Estate of Jenkins, 366 Ga. App. 628 (2023). O.C.G.A. § 29-4-2 provides: (a) Only an individual may serve as guardian of […]
In Georgia, when determining whether a guardianship is necessary, the Court looks solely at capacity. Disability alone is not sufficient to impose a guardianship. There is no presumption that a guardianship is necessary. The appointment of a guardian must be in the Ward’s best interests. Further, Courts are required to structure the guardianship to encourage […]
Last updated 9/2/2025 Georgia Guardianship and Conservatorship When interpreting Georgia’s Guardianship and Conservatorship Code, definitions are critical. In Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), the Georgia Supreme Court said “[T]he fundamental rules of statutory construction … require us to construe a statute according to its terms, to give words their plain […]
In In re Estate of Jenkins, 366 Ga. App. 628 (2023), Gary Jenkins was living in an assisted living facility due to his severe memory and mental health problems. His spouse filed a Petition for Guardianship and Conservatorship after Mr. Jenkins impersonated a police officer and, as a result, was admitted to a memory care […]
In Garner v. Acadia Healthcare Company, Inc., 370 Ga. App. 146 (2023), Appellants alleged that William had been missing since his discharge from the facility and that Appellees breached a duty of care owed to William to keep him safe. The Appellee/Defendant filed a motion to dismiss for failure to state a claim. The Superior […]
The general rule is that “an award of attorney fees and expenses of litigation are not available to a prevailing party unless authorized by statute or contract.” Cary v. Guiragossian, 270 Ga. 192, 195(4), 508 S.E.2d 403 (1998). Georgia law generally follows federal law, allowing the Court to sanction parties and their attorneys for frivolous claims, defenses […]
In In Re Estate of Henry, 366 Ga. App. 638 (2023), Charles Henry executed a new Will in 2017, revoking his Will from 2007. Charles had divorced his previous wife, leaving substantially all of his estate to his two children, Tenika and LaRon. In 2011, Charles married Shirley. An antenuptial agreement was executed, although the […]
In In re Dallas, 369 Ga. App. 553 (2023), the Probate Court denied a Petition for Year’s Support. In Georgia, there is no spousal right to a portion of a decededant’s estate. Instead, the surviving spouse and any dependent children may file a Petition for Year’s Support. The purpose of year’s support is to provide […]
We previously reported on In re Estate of Curvan, 362 Ga. App. 665 (2022). This case made its way back to the Court of Appeals in 2025 in a pro se appeal. The first lesson from this case is “hire a lawyer” before filing an appeal. No transcript was submited and the appellant failed to […]
In many cases in involving the Probate Court, the moving party must present clear and convincing evidence to prevail. But what does that mean? The standard was explained (at least in part) in In re Knight, 372 Ga. App. 485 (2024). Lillian Knight passed away, naming her daughter, Karen, as executor. Prior to her death, […]
In In re Bruni, 369 Ga. App. 488 (2023), the adult children of a proposed ward filed a petition for guardianship and conservatorship, and later filed an emergency petition. The proposed ward’s wife had been liquidating the proposed ward’s assets and lost $220,000 in one transaction. As a result the Probate Court “appointed an emergency […]
In In Re Estate of Kurtzman, 366 Ga. App. 725 (2023), Bette Kurtzman, 85 years old, had dementia and was residing in an assisted living facility. In December of 2020, Kurtzman’s daughter, Amy, and brother, Myron, filed a Petition for Guardianship and Conservatorship. Bette Kurtzman objected to the petition, alleging she had nominated her son, […]
Moratorium on Nursing Home Staffing Standards On July 4, 2025, the One Big Beautiful Bill Act was signed into law. One of its provisions placed a moratorium on the Biden Era minimum staffing standards for nursing homes. Specifically, Section 71111 of the OBBBA provides: Subchapter B—Preventing Wasteful Spending SEC. 71111. MORATORIUM ON IMPLEMENTATION OF RULE […]
There are a few major changes for elders in the One Big Beautiful Bill Act. First, as discussed in numerous articles cited below, it appears that reductions in funding will cause home and community-based services to be limited. This could mean more seniors are forced into nursing homes because they lack support to remain home. […]
Recent Supreme Court Medicaid Case In Medina v. Planned Parenthood South Atlantic (US 6/26/2025), the Supreme Court decided that two plaintiffs did not have a right to use 42 U.S.C. § 1983 to enforce the any-qualified-provider provision in 42 U.S.C. § 1396a(a)(23)(A). The abortion part of the case is not important for our analysis. This […]
As an initial proposition, all relevant evidence is admissible. See Federal Rules of Evidence, Rule 402. In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since then, expert testimony (subject to Rule 702) is not relevant unless it is “(1) scientific knowledge that (2) will assist the […]
Improper Use Spoils Trust Is it possible to spoil a trust by misusing it? The answer was “yes” in S.P. v. Division of Medical Assistance and Health Services (N.J. Super. App. Div. 2025). In that case, a brother wanted to provide housing for his sister. He did this by establishing and funding a trust that […]
2025 Legislative Changes During its 2025 session, the Georgia Legislature passed, and the Governor signed, two new laws impacting guardianships and conservatorships in Georgia. The first was HB 36. The second was SB 98. Both laws become effective July 1, 2025. HB 36 Code Section 29-4-1 now expressly provides there is no presumption that a […]
Video Wills You might wonder whether you can make a video recording of yourself stating who gets your stuff and use the video as your Will. Well, as Jesse Beck’s family found out, that probably doesn’t work. At least not yet. In Estate of Beck, 557 P.3d 1255 (Mont. 2024), Jesse made a recording on […]
2025 Georgia Medicaid Transfer Penalty If an applicant for long-term care Medicaid (e.g., nursing home Medicaid) transfers resources for less than fair market value during the 60-month look-back period, a transfer penalty is calculated. In 2024, the Georgia transfer penalty was $10,025. Effective April 1, 2025, the penalty divisor for Georgia Medicaid applicants has increased […]
Recently, my dad died. While I was driving back from being sworn in as his executor, I got a call. My father-in-law, who is a very smart man, was at the bank about to take money to some scumball because he thought he was about to be arrested. Yes, the scammers are now impersonating the […]
In Georgia, an individual has legal capacity to make a Will “when the testator has a decided and rational desire as to the disposition of property.” O.C.G.A. § 53-4-11(a). Georgia also recognizes that capacity is fluid and the testator may be able to make a Will even when he or she is unable to enter […]
Last updated 2/28/2025 The Georgia Power of Attorney Act was enacted in 2017 (HB 221) and amended in 2018 (HB 897). It is codified at O.C.G.A. § 10-6B-1 et seq. The Act was effective as of July 1, 2017. It does not apply to powers of attorney executed prior to the effective date, but powers […]
In North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, the U.S. Supreme Court was asked to review North Carolina’s attempt to tax an out-of-state trust. Justice Sotomayor, writing for a unanimous court, said the case was about the limits of a State’s power to tax a trust. “The North Carolina […]
Medicaid is critical for individuals with special needs. It pays for things no one else will pay for and it has recently come under fire. The Arc is working to protect Medicaid for its constituents. It is activating advocates to protect services for the disability community. It is also seeking donations to further its efforts. […]
Since 1980, Medicare pays after another responsible entity pays certain health care claims for Medicare beneficiaries. This is known as Medicare Secondary Payer (MSP). Although the issue arises in other contexts, for Elder Law Attorneys, it usually comes up when an injury claim or a worker’s compensation claim is resolved. For that reason, this post […]
If you are looking for assistance understanding Elder Law, a Certified Elder Law Attorney can help. Before you can sit for the exam, which (last time we checked) has a forty percent pass rate, Certified Elder Law Attorneys (CELAs) must meet the following criteria: Licensed Attorney: You must be a licensed attorney and an active […]
