Guardianship and Conservatorship Book: Preface and Table of Contents

This page, which we call our Guardianship book, and the related Chapter pages, are an update and revision of a paper originally prepared for presentation at the National Aging & Law Institute in Washington, D.C., November 8-10, 2012. We have updated this material several times. The research included cases found in Lexis’s State Court case library using the following search: HEADNOTES(guardian or guardianship or conservator or conservatorship) and CORE-TERMS(guardianship or conservatorship) and date(geq (4/1/2012) and leq (1/20/2015)). The original presentation included video clips from interviews with Judge Sheri Blevins (Probate Court Judge, Whitfield County, Georgia), Larry Winter, CPA, and Professor Mary Radford (Georgia State University College of Law). In 2015, the video component was replaced with a teaching video showing, essentially, what “not to do” when trying a guardianship or conservatorship case. The 2015 video, based loosely on the facts in Johnson v. Mitchell, 2013 Ark. App. 498 (2013), is available on YouTube and is embedded below:

Preface:

The primary purpose of a guardianship or conservatorship is to protect a class of citizens who are incapable of fully protecting themselves. In re Conservatorship of Smith, 655 N.W.2d 814 (Minn. App. 2003); In re Link, 713 S.W. 2d 487 (Mo. 1986). Guardianships and conservatorships are court proceedings which, when approved, implement the concept of parens patriae. (Note 1) They include “front end” procedures (associated with due process when the petition is considered) and “back end” procedures (associated with guardian oversight) (Note 2). By contrast, a power of attorney or an advance directive for health care documents a voluntary agency relationship between a principal and his or her agent; those relationship can be terminated at will by a principal with capacity. Because a guardianship or conservatorship is created by the court, it is not voluntary and can only be terminated as provided for in the guardianship and conservatorship law.

“Conservatorship proceedings provide a forum for determining whether a person’s ability to remain autonomous has become impaired. Even though these proceedings are intended to promote the best interests of the vulnerable elderly (Note 3), they carry with them the real possibility of displacing the elderly person’s ability to make even the most basic decisions for themselves and to live their lives unfettered by the control of others. Persons who are the subject of a conservatorship face a substantial loss of freedom, that resembles the loss of freedom following a criminal conviction.” In re Conservatorship of Groves, 109 S.W.3d 317, 329 (2003) (citations omitted) (Note 4).

In Georgia (Note 5), the guardianship process is the exclusive method for appointing a guardian other than a guardian ad litem. O.C.G.A. § 29-4-1(b) (Note 6). The conservatorship process is the exclusive means for appointing a conservator, except a conservator for the estate of an individual who is missing or believed to be dead. O.C.G.A. § 29-5-1(b). If the Petition is uncontested, then the formalities must be followed, but the process can be completed, in most cases, within about four weeks. When the case is contested, a guardianship or conservatorship may seem like divorce litigation on steroids.

Not all rights are taken from a ward. Since 2005, Georgia Courts are required to limit a guardianship or conservatorship to the least restrictive means of protecting the ward. Further, even after a guardianship or conservatorship is imposed, a ward has the right to:

(1) a qualified guardian who acts in the best interest of the ward;
(2) A guardian who is reasonably accessible to the ward;
(3) Have the ward’s property utilized to provide adequately for the ward’s support, care, education, health, and
welfare;
(4) Communicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction;
(5) Individually, or through the ward’s representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter and Chapter 5 of this title and including the right to bring an action to modify or terminate the guardianship pursuant to the provisions of Code Sections 29-4-41 and 29-4-42;
(6) The least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences (Note 7); and
(7) Be restored to capacity at the earliest possible time. O.C.G.A. § 29-4-20 (Note 8).

The appointment of a guardian is not a determination regarding the right of the ward to vote. The appointment of a guardian is not a determination that the ward lacks testamentary capacity. O.C.G.A. § 29-4-20.

Chapters:

• Chapter 1: Terminology, and “Who is the Client?”
• Chapter 2: Initiating the Action and Overview
• Chapter 3: Issues Typically Contested
• Chapter 4: Presenting the Case and Development of Evidence
• Chapter 5: Anticipating Appeals
• Chapter 6: Post Appointment “Back-End” Issues
• Chapter 7: Termination Issues

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