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:

___________

Notes:

  1. “Under this doctrine, the King, as father (parent) of the country, is responsible for caring for those citizens who cannot care for themselves.” See M.F. Radford, Guardianships and Conservatorships in Georgia, § 1-1 (Chattahoochee Legal Press 2005) (hereinafter “Radford”). Reform of State guardianship laws, and updated notions of due process, began to emerge following the U.S. Supreme Court’s decisions in In re Gualt, 387 U.S. 1 (1967) (a juvenile delinquency proceeding), and Specht v. Pattterson, 386 U.S. 605 (1967) (a mental illness commitment proceeding). The uniform conclusion was “where the state undertakes to act in parens patriae, it has the inescapable duty to vouchsafe due process and due process requires that the infirm person be fully advised of his rights and accorded each of them unless knowingly and understandingly waived.” In re Link, supra, at 494. In K. Glen, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond, 44. Colum. Human Rights L. Rev. 93 (2012), the writer briefly traces the history of guardianship law from Roman times. In Amsouth Bank v. Cunningham, 253 S.W.3d 636 (2006), the Court said “The purpose of a conservatorship is to protect the person and the property of the disabled person, the ward. Conservators are court appointed fiduciaries who act as agents of the court and their rights and responsibilities are set forth in the court’s orders.”
  2. N. Karp and E. Wood, Guardianship Monitoring: A National Survey of Court Practices (AARP 2006), at 2.
  3. O.C.G.A. § 29-4-1(c). “Guardians and caregivers have long experienced the tension of protecting individuals who are incapacitated, primarily elders and people with disabilities, while respecting their autonomy.” E. Cashmore, Guarding the Golden Years: How Public Guardianship for Elders Can Help States Meet the Mandates of Olmstead, 55 B.C. L. Rev. 1217 (2014).
  4. “Guardianship is a powerful legal tool that can bring good or ill for an increasing number of vulnerable people with cognitive impairments, affording needed protections yet drastically reducing fundamental rights.” Guardianship Monitoring, supra, at 1.
  5. The guardianship process is “similar” in most States, but procedural rules vary. Although reference is made throughout this book to cases from other States, the rules in Georgia and Tennessee are used as a discussion template. Guardianship statutes for other States are listed in a chart prepared by the ABA’s Commission on Law & Aging at: https://www.americanbar.org/content/dam/aba/administrative/law_aging/2019-adult-guardianship-statutory-table-of-authorities.pdf.
  6. Although the guardianship process is the exclusive method for appointing a guardian, the Georgia mental health code provides for short term involuntary detainment in a health care facility. O.C.G.A. § 37-3-41 et seq. An involuntary detainment is not tantamount to an adjudication of incompetence; it is designed to protect individuals with an emergent mental health disorder from harm. A non-judicial detainment requires completion of “Form 1013” by a physician (hence, it is known as a “1013 procedure”). Form 1013 must be completed by a physician, psychologist, clinical social worker, or clinical nurse specialist in psychiatric/mental health. The certificate expires in 7 days. A judicial order for evaluation is authorized pursuant to O.C.G.A. § 37-3-41(b). An involuntary patient may apply to be transferred to voluntary status. O.C.G.A. § 37-3-24. Detainment without judicial intervention cannot exceed 5 days. O.C.G.A. § 37-3-64. Detainments in excess of 5 days require certification from the chief medical officer of the facility, supported by the opinions of 2 physicians, or a physician and psychologist who personally examined the patient; their recommendation must be filed with a petition for hearing in a court of competent jurisdiction. O.C.G.A. § 37-3-81. Generally, jurisdiction is in the Probate Court for adults, O.C.G.A. § 15-9-30(a)(9) and Juvenile Court for minors, O.C.G.A. § 15-11-10(e). Detained patients retain all rights and privileges. O.C.G.A. § 37-3-140. They have a right to counsel. O.C.G.A. § 37-3-141. A detained patient may petition a court for a writ of habeas corpus. O.C.G.A. § 37-3-148.
  7. This is a different approach from how guardianships were handled no more fifty to sixty years ago. “In the nineteenth and first half of the twentieth century, however, the primary social and legal policy for persons with intellectual and psycho-social disabilities was institutionalization. Beginning with well-intentioned experimental schools, economic and other forces led quickly to “custodial asylums with reduced emphasis on educating residents and returning them to community life. By the beginning of the twentieth century, poor farms or almshouses were also a significant aspect of state provision for people with intellectual disabilities.” Glen, Changing Paradigms, supra, 44 Colum. Human Rights L. Rev. at 104.
  8. See also O.C.G.A. § 29-5-20 for rights relating to a conservatorship. Each of these rights makes litigation a possibility if the ward alleges mistreatment.

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