(Last updated 8/8/2023)

The central and initial issue in every guardianship and conservatorship case is whether the proposed ward has decision-making capacity. In other words, can the proposed ward make and communicate significant decisions about himself (or herself) and can the proposed ward make and communicate significant decisions about his (or her) finances? For purposes of this discussion, we will call the proposed ward Betty White. The persons seeking guardianship are her children, Sarah White and Robert White.

Background Questions:

• What is Betty’s full/legal name?
• What is your relationship to Betty?
• Where does Betty live? Does she live alone or with someone? If with someone, who?
• How long has Betty lived there (this is a jurisdictional question in Georgia)?
• Does Betty have a living spouse? If so, who. If not, when did he die (or was she never married)
• Does Betty have any living children? If so, who are they? (in Georgia, a spouse and adult children have preference when the Court is appointing a guardian or conservator) (If there is no living spouse and there are not any living children, questions should be asked to identify Betty’s closest living relatives)
• What do you know about Betty’s monthly income?
• What do you know about Betty’s property? (the Court will want to know, first, because it is important to protect Betty’s income and property for her care, and second, because it impacts the bond requirement)
• Does Betty have any regular monthly bills? What are they?
• Are you aware of any conditions or diagnoses impacting Betty’s health?
• Does Betty have a Will?
• Does she have a power of attorney? If so, who is the agent and why is a conservatorship necessary?
• Does Betty have an advance directive for healthcare? If so, who is the agent and why is a guardianship necessary?
• Does Betty have health insurance?

Although not relevant when seeking information regarding the proposed ward, the Court will likely want to know more about the Petitioner. Where does the Petitioner work? Will work interfere with Petitioner’s ability to look after the proposed ward? If the proposed ward will live with Petitioner, who else will reside there?

Basic Questions for the Petitioner About the Proposed Ward and Concerning Capacity:

• What is your name and where do you live?
• What is your relationship to Betty?
• Who currently takes care of Betty?
• Can Betty live alone? If not, why not?
• Tell us about Betty. What are her present circumstances? What help does she need?
• What happened to Betty? When did it happen?
• Do you believe she needs a guardian/conservator? If so, why?
• Can Betty shop for her own groceries?
• If Betty had groceries, could she follow a recipe?
• Could she safely use cooking utensils?
• Does Betty know how to wash dishes and put clean dishes back in place? (The issue here is not physical ability, but is whether she understands the process)
• Has Betty been eating a healthy diet?
• Can Betty make her own medical appointments?
• Would Betty be able to evaluate information from her doctor and make decisions? If not, why not? Could she choose between medical options?
• Would she be able to review any paperwork from her doctor and follow post-appointment instructions?
• Could Betty safely drive herself to her doctor?
• Can Betty manage her medications? Does she remember to take her medications?
• Could Betty prepare a budget? Do you believe she would understand a budget?
• Can Betty manage her checkbook?
• Can Betty pay her own bills?
• If she bought something at the store, could she make change? Would she know how much change she should get back?
• Would Betty be able to recognize and avoid scams? (Include questions regarding judgment; ability to evaluate investments vs. scams)
• Does Betty understand that her new friend is living off of Betty’s income?
• Would Betty understand how to evaluate her own needs before making a gift if someone asked her to give them some of her property? (Would she appreciate the consequences of making the gift)
• If Betty was making a gift, do you believe she would understand the nature of the gift?
• Can Betty manage her mail? Does she understand what she’s received in the mail?
• If Betty cannot drive, would she be able to call a taxi? Would she be able to give directions to the driver?
• If Betty was dropped off several blocks from her home, could she fin her way home?
• If her home needed maintenance, would Betty be able to find a repairman and negotiate terms for the repairs?
• Would Betty understand a basic contract?
• Does she vote? Is she able to vote? Would she be able to evaluate information from competing candidates and make an informed decision?
• Would Betty know how to keep a secret? Would she understand that something needs to be kept secret?
• If appointed, are you willing to serve as guardian and/or conservator?
• Do you believe you are the most suitable person to serve as guardian and/or conservator? If so, why? If not, then who is and why?

Questions for Betty:

• Mrs. White, please tell the Court your name
• Do you understand why we’re here?
• Who are your children?
• Where is your husband?
• Where do you live?
• How do you spend your day (typical day)?
• What is your favorite activity?
• What are your favorite foods?
• Who is your doctor?
• When is the last time you saw your doctor?
• Where do you bank?
• How much is your monthly income?
• What are your monthly bills?
• Regarding specific property, what is the value of ….?
• When is the last time you saw (opposing petitioner)?

Additional questions when capacity is clearly absent:

• Does Betty remember basic information? Has this changed over time? How so?
• Does Betty recognize her family members? Does she know who her children are?
• Could Betty put a jig-saw puzzle together?
• Can Betty use a phone?
• Can Betty make change?
• Can Betty dress herself?
• Can Betty match her clothes?
• Can Betty brush her teeth? Can she manage/clean dentures?
• Could Betty find her favorite television show or use the remote control to get to the right station?
• Would Betty know how to bath and groom herself?
• If there was an emergency, could Betty call 9-1-1?
• Does Betty see or speak with people who aren’t there?
• Does She appear depressed? Has anything happened recently that caused her to be depressed?

The other issue, once there is proof legal capacity, is absent is who should be appointed as guardian and who should be appointed as conservator. Contested cases frequently look like a divorce on steroids’ where parents are fighting over custody of their children. As often as not, in addition to showing why the petitioning party should be appointed, evidence is submitted showing why the other party should not be appointed.

When the opposing party is estranged or frequently absent, basic questions designed to show a lack of knowledge include:

• Prior to this proceeding, how often did you see or speak with Betty?
• What is Betty favorite meal?
• Are there certain foods Betty dislikes? What are they?
• Who is Betty’s doctor?
• What medications does Betty take?
• Do you own property with Betty?
• Have you taken any of Betty’s property or received a gift from Betty within the last five years? If so, what was it?
• If not local, when is the last time you asked someone to check in on Betty?
• If alleging abuse by someone else. did you report the alleged abuse to adult protective services? Did you report it to the police?

Other questions for the opposing Petitioner:

• What is your relationship to Betty?
• Where do you live?
• Who currently takes care of Betty?
• Tell us about Betty’s current circumstances
• Do you believe Betty needs a guardian?
• Do you believe she needs a conservator?
• If you are appointed as guardian or conservator, what are your plans for Betty’s care?
• What would Betty want you to do? Have you discussed her values with her? Are your plans consistent with Betty’s values? If so, how? If not, why are they different?
• Have you ever been arrested?
• Have you ever been convicted of a felony?
• Have you ever filed a bankruptcy petition?
• Where do you live? If not local, how do you intend to provide Betty the care she needs?
• Have you asked Betty to change her Will? Did you attempt to have yourself appointed as her agent?
• Have you ever been accused of harming Betty? If so, by whom? Did you do it? What were the circumstances?

Questions for a Petitioner about an opposing Petitioner:

• Should the opposing Petitioner be appointed as guardian and/or conservator? If not, why not?
• Is Betty afraid of the other Petitioner?
• Would the opposing petitioner try to follow Betty’s known values? What are Betty’s values? What would the opposing Petitioner do that is inconsistent with Betty’s values?
• Has the other Petitioner taken any of Betty’s property or income?
• How often does he or she contact Betty?
• How often do they attend family gatherings?
• When is the last time he (or she) offered to help with Betty’s care? What did they offer? Did they follow through?
• Has the other petitioner taken advantage of Betty? Has he (or she) hurt or neglected Betty? If so, how?

Questions when the proposed ward is younger with mental impairment or is developmentally delayed:

• Is Johnny still in school?
• Does Johnny have an IEP?
• Can Johnny make change?
• Can Johnny drive?
• Would Johnny be able to navigate from one place to another safely?
• Would Johnny be able to tell a police officer where he lives?
• Can Johnny work?
• Is Johnny easily manipulated?
• Does Johnny have any brothers and sisters? If so, who are they and what are their ages?
• Does Johnny own any property?
• Does Johnny have any income? Have you applied for SSDI or SSI? If so, will you be the representative payee?
• What are Johnny’s favorite activities?
• What can Johnny do? (emphasis positive as well as negative)

Questions regarding ability to perform activities of daily living and instrumental activities of daily living are relevant to the extent limited judgment impairs the proposed ward’s ability to perform them. Also, most of those activities are so basic that absent a physical disability, inability to perform them likely shows impaired judgment.

As appropriate, additional questions should be developed regarding Betty’s needs, how her needs will be met, and regarding who should or should not be appointed as guardian or conservator and why. If appropriate, specific questions should be asked regarding allegations of elder abuse. The Court is required to take action consistent with Betty’s best interests, so any information that would help the court understand what is in Betty’s best interests is helpful and relevant.