Probate Court properly exercised its discretion disregarding spouse’s statutory priority as guardian

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 facility. One of Mr. Jenkins’s children, Wesley, “filed a caveat to the petition, arguing that Mrs. Jenkins should not be appointed the guardian because she enabled Mr. Jenkins’ drinking habits that caused his medical situation.”

The evidence showed that despite multiple emergencies, including one where Mr. Jenkins’ liver was shutting down, Mrs. Jenkins enabled her husband’s drinking by keeping his liquor cabinet stocked. “Wesley testified that alcohol was a “constant… presen[ce]” in the house, that “[t]here was never a moment that [he] walked into [their] house and there wasn’t alcohol,” and that Mrs. Jenkins would often restock the house’s bar before she left on vacation or visited others. Wesley further testified that Mrs. Jenkins was “no less of a[n] alcohol lover than [his] dad,” and that the couple regularly engaged in a toxic cycle of drinking and arguing.”

In 2016, prior to the guardianship proceeding, Mr. Jenkins signed an Advance Directive where “he selected Mrs. Jenkins as his Health Care Agent, the person he authorized to make health care decisions on his behalf. The form also indicated that Mr. Jenkins selected his son, Clint Jenkins, as his back-up Health Care Agent.” Following a hearing, the Court appointed Mrs. Jenkins as conservator, but appointed Wesley as guardian. Mrs. Jenkins appealed.

The Court of Appeals affirmed, finding that the trial court did not abuse its discretion when it found good cause to disregard Mrs. Jenkins’ statutory priority as guardian over Mr. Jenkins. Georgia law requires the Court to appoint an “individual who will best serve the interest of the adult.” The Court must consider statutory preference, but may disregard any individual with preference if doing so is in the ward’s best interest; however, the Court must find good cause to disregard the individual last nominated by the ward in accordance with O.C.G.A. § 29-4-3(d).

The Court of Appeals held that good cause existed because (1) evidence showed Mrs. Jenkins “was incapable of handling Mr. Jenkins’ health” and (2) “she would continue to aid or enable Mr. Jenkins’ alcoholism.” The record supported the trial court’s finding that:

“appointing Mrs. Jenkins as guardian would not be in Mr. Jenkins’ best interest, the trial court did not abuse its discretion by passing over Mrs. Jenkins when it appointed a legal guardian for Mr. Jenkins. See In re Holloway, 251 Ga. App. 892, 894, 555 S.E.2d 228 (2001) (under the prior, materially identical version of OCGA § 29-4-3, evidence supported the trial court’s determination that good cause was shown to refuse to appoint the ward’s children as guardians when their actions called into question whether they could act in the ward’s best interests); see also In re Estate of Kaufmann, 327 Ga. App. 900, 902-903, 761 S.E.2d 418 (2014) (good cause shown under OCGA § 29-4-3(b) to disregard the ward’s preferred guardians when the trial court concluded that two of the proposed guardians would probably abandon their role and that appointing the other proposed guardian would have deteriorated the family’s relationships to the detriment of the ward).”

Although the portion of the lower Court Order rejecting Mrs. Jenkins as guardian was affirmed, the Court of Appeals found that the trial court did not adequately explain why it appointed Wesley as guardian. Accordingly, the case was remanded with direction that the trial court prepare appropriate findings of fact to support its decision.