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, Richard, as guardian and conservator in her estate planning documents.
Amy and Myron argued the estate planning documents nominating Richard as guardian and conservator were invalid due to incapacity at the time they were signed. They also argued Richard was not looking after Bette’s care and was mainly concerned with his inheritance. Richard filed nothing with the Court.
A two day hearing followed. The Probate Court granted the Petition and appointed Amy as guardian and the Fulton County Conservator as conservator. The Court
summarized the conflicting evidence (including the conflicting testimony of Amy, Myron, and Richard) regarding whether Kurtzman was receiving proper care at the assisted living facility that Richard chose for her and regarding who should be appointed as her guardian and conservator. Additionally, the probate court summarized the dispute over the validity of the Estate Planning Documents but then stated, without further elaboration, that “[b]ased on other factors in this matter, it [was] not necessary for the Court to make a ruling on these issues.”
In its conclusions of law, the Probate Judge’s decision to not appoint Richard was based on his failure to file any responsive pleadings. He appeared to rely solely on the estate planning documents.
On appeal, the Court of Appeals found that the Probate Court applied the wrong standard in selecting the guardian and conservator. First and foremost, the Probate Court must appoint a guardian who will serve the best interest of the adult. O.C.G.A. § 29-4-3(a). Although the Court may disregard preference, the Court must first consider the statutory order of preferences. The same statutory framework applies for conservatorships. When the Court disregards someone with a higher preference in favor of someone with lower preference, the only disregarded person requiring a showing of “good cause” is an individual nominated by the proposed ward. O.C.G.A. §§ 29-4-3(a); 29-5-3(a). There was no discussion in the decision regarding good cause for skipping Richard.
On appeal, Bette argued the validity of her estate planning documents was a core issue. The Court of Appeals agreed with Bette, holding:
the probate court could have chosen to pretermit whether the Estate Planning Documents were valid and proceed to address whether there was good cause shown to disregard any statutory preference afforded to Richard as a nominated individual under those documents. But that is not what occurred here. While the probate court entered a detailed final order, the court did not acknowledge or discuss the preference for individuals nominated by an adult under OCGA §§ 29-4-3 (b) (1) and 29-5-3 (b) (1) or address whether, assuming the Estate Planning Documents were valid, there was “good cause shown” to disregard the statutory preference under the circumstances of this case. See OCGA §§ 29-4-3 (a); 29-5-3 (a). Rather, the probate court appears from the “Conclusions of Law” section of its order to have disregarded Richard as a potential guardian and conservator because, although he testified at the hearing, he did not file a written request for appointment or file any pleadings in the proceedings. But the probate court cited to no statutory provision or case law requiring an individual nominated to serve as guardian or conservator under OCGA §§ 29-4-3 (b) (1) and 29-5-3 (b) (1) to submit such a written request or filing before he or she can be considered for appointment, and we have found none.
Because Bette raised the issue in her response, the “issue of whether Richard should be appointed as Kurtzman’s guardian and conservator therefore was squarely and properly before the probate court for determination, irrespective of whether Richard separately filed a petition for guardianship and conservatorship or formally intervened in the proceedings.” The Court held that the statute does not require the nominated individual to file any pleadings in the proceeding and “we will not engraft additional requirements onto the otherwise plain language of those statutes.”
Because the Probate Court applied an incorrect analysis in determining who to appoint, the decision below was reversed and remanded “for further consideration of whom should be appointed as Kurtzman’s guardian and conservator consistent with this opinion.”
As of this post, there is no reported subsequent history. However, the result does not indicate Richard will be appointed. If Amy and Myron were successful on remand showing that Richard was primarily concerned about his inheritance, the result in Cruver v. Mitchell, 289 Ga. App. 145 (2008) would work against his appointment.
