Terminology
Terminology is sometimes confusing. At times, the terms “guardian” and “conservator” are used interchangeably. Georgia formerly used the term/phrase “guardian of the person” to describe a fiduciary making personal decisions and “guardian of the property” to describe the fiduciary making financial decisions (Note 1). Tennessee describes a guardian as a fiduciary appointed for a minor, while conservator describes a fiduciary appointed for a disabled adult (Note 2).
Georgia now distinguishes the terms, with “guardian” describing the fiduciary making personal decisions and “conservator” describing the fiduciary making decisions regarding property and finances (Note 3). See also Uniform Adult Guardianship and Protective Proceedings Act, § 102(2) (defining conservator) and § 102(3) (defining guardian). Although some find use of the term pejorative, in most instances, the subject of a guardianship or conservatorship is referred to as the “ward” (Note 4).
Who is the client?
The initial task in every representation is identifying the client (Note 5). Whether an action is contested or uncontested, the petitioner’s interests are generally adverse those of the alleged ward (Note 6). For that reason, it is unlikely that an attorney would represent both the petitioner and the ward (Note 7). Nonetheless, in some States Rule 1.14 of the Rules of Professional Conduct permits (or requires) protective action on behalf of a client where the lawyer reasonably believes the client has diminished capacity. In some States, this includes seeking the appointment of a guardian. See, e.g., Georgia Rules of Professional Conduct, Rule 1.14(b). (Note 8).
When initially approaching a case, often the attorney explores whether he or she can have a prospective ward sign a power of attorney and/or advance directive (Note 9). In a hypothetical case where Mr. Jones asks you about taking care of his mom, can you first try to get a power of attorney and health care advance directive signed and, if that proves unsuccessful, still represent Mr. Jones as petitioner? Did you become mom’s attorney by preparing documents for her signature? What do you do if mom asks what the documents mean? Does the exercise of explaining the documents constitute giving mom legal advice? Can you give mom legal advice after speaking with a prospective guardian or conservator about the possibility of filing a guardianship petition? If you do speak with mom about executing those documents and she declines to sign them, can you still represent Mr. Jones in a guardianship action against mom?
The difficulty in resolving these issues is acknowledged (without being resolved) in J. Krauskopf et al., Elderlaw: Advocacy for the Aging, Second (West 1993), § 9.7. “The attorney who practices elder law is often presented with a difficult problem in determining who is actually the client. When the attorney is contacted by an adult daughter to establish a guardianship for her mother because the daughter believes the mother to be incapacitated, the attorney should consider whether he or she has a duty to the mother. Under most circumstances, the duty of the attorney is predominately to the daughter/proposed guardian and will involve advocating the guardianship on behalf of the daughter client and educating her about the rights, powers, duties and responsibilities of her position.” The lines are even more blurry when the attorney was hired to protect family wealth. Id. “Can the attorney represent the family, or are the interests so disparate that an inherent conflict of interest prevents multiple representation of the parties?”
Rule 1.7(a) of the Georgia Rules of Professional Conduct provides: “A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.” Rule 1.7(c)(2) provides that informed consent to joint representation is not possible if the representation “includes the assertion of a claim by one client against another client represented by the lawyer in the same or substantially related proceeding.” Comment 7 explains subsection (c)(2): Paragraph (c)(2) prohibits representation of opposing parties in the same or a similar proceeding including simultaneous representation of parties whose interests may conflict, such as co-plaintiffs or co-defendants. An impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party.
Rule 1.14 (which varies from State to State) addresses situation where the attorney-client relationship has attached and the client has diminished capacity. Georgia’s Rule 1.14 provides as follows:
a. When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
b. When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian (Note 10).
c. Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
The ACTEC Commentaries to Rule 1.14 address situations where the lawyer is hired to represent the fiduciary and where the lawyer represents a client with diminished capacity (Note 11). The ACTEC commentaries indicate that if the lawyer did not previously represent the alleged ward, then the client is the fiduciary; the lawyer may nonetheless owe certain duties to the disabled person. If the lawyer represented an individual with diminished capacity prior to the incapacity, then the lawyer may continue to represent the client. In some cases, a lawyer may represent the guardian or conservator of a former client if the representation is not directly adverse. The commentaries indicate this is not possible if there is a significant risk that joint representation of one would materially limit obligations owed to the other. Although the commentaries do not offer any examples, situations where the representation “might” not be adverse include representing the individual who was designated by the client as guardian or conservator if the person to be appointed indicates that he or she will follow the wishes of the former client. The best practice would likely involve bringing the matter to the Court’s attention and allowing the Court to determine whether continued representation is possible after full disclosure.
BLOG POSTS
Rights of the ward; impact on voting and testamentary capacity; O.C.G.A. § 29-4-20
Georgia Guardianship law presupposes that the guardian must act in the best interests of the Ward. In that regard, O.C.G.A. § 29-4-20 states certain rights the Ward has. O.C.G.A. § 29-4-20 provides: (a) In every guardianship, the ward has the right to: (1) A qualified guardian who acts in the best interest of the ward; […]
Temporary medical consent guardianship; O.C.G.A. § 29-4-18
In some cases, no one can be found who will consent to medical procedures for a patient. O.C.G.A. § 29-4-18 provides a solution by allowing any interested party to file a petition to become a temporary medical consent guardian. It is worth noting that “a temporary medical consent guardian shall not be authorized to withdraw […]
Conduct of emergency guardianship hearing; limitations on emergency guardianship; O.C.G.A. § 29-4-16
If an emergency guardianship is warranted, O.C.G.A. § 29-4-16 sets the requirements for how the hearing is conducted. O.C.G.A. § 29-4-16 provides: (a) The court shall conduct the emergency guardianship hearing, at the time and date set forth in its order, to determine whether there is clear and convincing evidence of the need for an […]
Guardianship Appeal Statute is purely statutory
In Matter of Doze, 717 SW 3d 240 (2025), a Missouri Court affirmed the decision below appointing Queen Doze’s father as her guardian. The case began when Queen’s sister, Mariah Doze, filed a Petitioner for Appointment of a Guardian and/or Conservator. Mariah alleged that her sister, who was 21 years old, had an “intellectual disability […]
Prerequisite findings prior to appointment of emergency guardian; evaluation; notice; hearing; O.C.G.A. § 29-4-15
All things being equal, a Petition for Emergency Guardianship should be denied in favor of a permanent petition. The reason is because emergency petitions are usually ex parte proceedings while the permanent petition allows all interested parties to present their arguments. O.C.G.A. § 29-4-15 provides: (a) Upon the filing of a petition for an emergency […]
Petition for appointment of emergency guardian; requirements of petition; O.C.G.A. § 29-4-14
Petition for Appointment of Emergency Guardian An emergency petition usually begins as an ex parte proceeding. In limited circumstances, an emergency guardianship is necessary. However, in most cases, the petition should be denied in favor of a permanent petition under O.C.G.A. § 29-4-10. In In re Farr, 322 Ga. App. 55 (2013), the probate court […]
Requirements of order granting guardianship; service O.C.G.A. § 29-4-13
Requirements of Order Granting Guardianship The Order included with Standard Form 12 includes the required elements found in O.C.G.A. § 29-4-13, but it should be modified as appropriate. For example, if there is a mediated resolution, the terms of the settlement should be incorporated into the Final Order. O.C.G.A. § 29-4-13 provides: (a) The court […]
Judicial review of pleadings and evaluation report; findings; hearing, O.C.G.A. § 29-4-12
Judicial Review of Pleadings and Evaluation Report The prejudice is that petitions for guardianship and conservatorship should be denied. That is why clear and convincing evidence is required before one may be imposed. In Bookholdt v. Brown, 224 Ga, 737 (1968), the Court said: “Among our most cherished rights, as American citizens, are the freedom […]
Prerequisite judicial finding of probable cause; notice; petition; evaluations; reporting requirements, O.C.G.A. § 29-4-11
Prerequisite Judicial Finding of Probable Cause The presumption under Georgia law is that a guardianship is unnecessary and should be dismissed unless clear and convincing evidence is produced to support prerequisite judicial findings. For that reason, subsection (b) requires dismissal if the Court’s initial review of the Petition finds there is no probable cause to […]
Petition for appointment of guardian; requirements for petition, O.C.G.A. § 29-4-10
Last updated 9/5/2025 Petition for Appointment of Guardian In Georgia, a Petition for Guardianship is filed on Georgia Probate Standard Form 12. Care should be used because the forms are updated from time to time. As pointed out in other cases, an objection is not a Petition. The standard form generally requires a response to […]
Order of preference in selection of guardians; written request nominating guardian; requirements of writing, O.C.G.A. § 29-4-3
The ultimate test in determining who should be appointed as guardian is “who will best serve the interest of the adult.” There is, however, a priority list. Certain persons, if they seek to be appointed, may only be disregarding “upon good cause shown.” Since most guardianship hearings are audio recorded, caseful counsel will want to […]
Qualifications of guardians selected for adults, O.C.G.A. § 29-4-2
Only individuals or the Department of Human Services may serve as guardian. Although not expressly spelled out, only someone capable of fulfilling the duties of a guardian may serve, as explained in In re Estate of Jenkins, 366 Ga. App. 628 (2023). O.C.G.A. § 29-4-2 provides: (a) Only an individual may serve as guardian of […]
Prerequisite findings prior to appointment of guardian for adult; extent of guardianship, O.C.G.A. § 29-4-1
In Georgia, when determining whether a guardianship is necessary, the Court looks solely at capacity. Disability alone is not sufficient to impose a guardianship. There is no presumption that a guardianship is necessary. The appointment of a guardian must be in the Ward’s best interests. Further, Courts are required to structure the guardianship to encourage […]
Georgia Guardianship and Conservatorship, OCGA 29-1-1
Last updated 9/2/2025 Georgia Guardianship and Conservatorship When interpreting Georgia’s Guardianship and Conservatorship Code, definitions are critical. In Couch v. Red Roof Inns, Inc., 291 Ga. 359 (2012), the Georgia Supreme Court said “[T]he fundamental rules of statutory construction … require us to construe a statute according to its terms, to give words their plain […]
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 […]
Attorney’s fees can be awarded for frivolous claims and defenses in Probate Cases
The general rule is that “an award of attorney fees and expenses of litigation are not available to a prevailing party unless authorized by statute or contract.” Cary v. Guiragossian, 270 Ga. 192, 195(4), 508 S.E.2d 403 (1998). Georgia law generally follows federal law, allowing the Court to sanction parties and their attorneys for frivolous claims, defenses […]
What is Clear and Convincing Evidence?
In many cases in involving the Probate Court, the moving party must present clear and convincing evidence to prevail. But what does that mean? The standard was explained (at least in part) in In re Knight, 372 Ga. App. 485 (2024). Lillian Knight passed away, naming her daughter, Karen, as executor. Prior to her death, […]
There is no right to appeal a non-final Guardianship Order
In In re Bruni, 369 Ga. App. 488 (2023), the adult children of a proposed ward filed a petition for guardianship and conservatorship, and later filed an emergency petition. The proposed ward’s wife had been liquidating the proposed ward’s assets and lost $220,000 in one transaction. As a result the Probate Court “appointed an emergency […]
The person nominated by a proposed ward as Guardian or Conservator is not required to file pleadings to be considered
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, […]
Expert Testimony
As an initial proposition, all relevant evidence is admissible. See Federal Rules of Evidence, Rule 402. In 1993, the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Since then, expert testimony (subject to Rule 702) is not relevant unless it is “(1) scientific knowledge that (2) will assist the […]
2025 Legislative Changes to Georgia’s Guardianship and Conservatorship Law
2025 Legislative Changes During its 2025 session, the Georgia Legislature passed, and the Governor signed, two new laws impacting guardianships and conservatorships in Georgia. The first was HB 36. The second was SB 98. Both laws become effective July 1, 2025. HB 36 Code Section 29-4-1 now expressly provides there is no presumption that a […]
Planning for Adult Children with Disabilities
Planning for Adult Children with Disabilities Childhood Disability Benefits assist disabled children and adults who became disabled prior to age 22. Most begin with Supplemental Security Income, which is a monthly cash payment for individuals with limited income and few resources. Because a parent’s income and resources are usually deemed available to the child, SSI […]
Oath for Georgia Guardians and Personal Representatives
Before a guardian or the personal representative of an estate takes office, he or she must take an oath. The form is a standard form and can be found here. The oath is usually made in front of the Probate Judge or a clerk with the probate court, but it can be taken out of […]
Probate Court Reversed for Ordering Conservatorship Accounting Before Determining Identity of Estate’s Personal Representative
The Georgia Court of Appeals decided the case of In re Bessie Mae Blake on February 20, 2024. Willis Blake was appointed as his mother’s conservator in 2000, but he was a poor record keeper. Although he was required to set up a separate account for Bessie Mae, keep records of expenses and file annual […]
Guardianship Evaluation is Admissible Regardless of Stipulation
Guardianship Evaluation In most cases I’ve been involved in, the evaluator’s report is stipulated into evidence or the evaluator is called as a witness. The reason is that the report cannot be cross-examined so the thought was that it’s subject to a hearsay objection. A recent case taught me otherwise (at least in Georgia). In […]
Georgia Court of Appeals Revisits the Preponderance-of-the-Evidence Standard
In White v. Stanley (Georgia Ct. App. 10/3/2023), Rhonda White appealed a jury verdict in favor of the defendants relating to a motor vehicle collision. White argued that the trial court gave an improper jury instruction regarding the Preponderance-of-the-Evidence Standard. The trial court instructed the jury using the existing pattern jury instructions. However, the law […]
Sometimes You Must Say No
Sometimes you just have to say No “No” isn’t a four-letter word. Saying “no” isn’t necessarily bad and you shouldn’t feel bad when you say it. Part of saying no means taking a stand. It can mean standing up to injustice. For example, our legal system is, for the most part, dependent on people saying […]
Family Acrimony Deemed Sufficient to Disregard Nomination of Guardian
In In re Wheeler (Ga. Ct. App. 6/6/2023), the Court of Appeals upheld the Probate Court’s decision that (1) there was sufficient evidence to impose a guardianship and conservatorship, and (2) that a neutral third-party be appointed as guardian instead of the person nominated by the ward. Because the reasoning in this case is “thin,” […]
Approving Settlements for Minors
In April, 2022, we reported that HB 620 altered how settlements for minors can be approved under O.C.G.A. § 29-3-3, at least in cases where the trial court approves direct payment to a trust. Prior to passage of HB 620, Section 29-3-3 read as follows: 2021 Version For purposes of this Code section, the term […]
Elder Law Mishmash June 2023
The following is a mishmash of information on various Elder Law, Special Needs Law, and Estate Planning issues. It also includes anything else we found interesting during the month of June, 2023. We will continue updating from time to time throughout the month. Last updated 6/8/2023. Keep in mind, you are using linked content at […]
Failure to Admit Evaluator’s Report Required Reversal of Conservatorship Order
Ms. Humprey was a hospital patient and the University of Tennessee Medical Center filed a petition for Conservatorship. The petition alleged she was unable to make appropriate decisions regarding her treatment and medical care. Petitioner attached the report of Dr. Taylor Wright in support of its petition. The Court appointed a guardian ad litem and […]
Ohio Court of Appeals Affirms Appointment of Guardian Despite Questionable Transcript from Probate Court Hearing
On September 15, 2022, the Ohio Court of Appeals affirmed a Probate Court decision appointing a guardian despite a spotty record of the proceedings below. In In re Guardianship of S.B., the proposed was suffered a traumatic brain injury. In 2004, the ward’s father filed a petition for guardianship and was appointed guardian. In 2007, […]
Conservator has exclusive power to bring, defend or participate in lawsuits for a ward
in Hall v. Davis Lawn Care Service, Inc., 314 Ga. 488 (S22G0019 8/23/2022), the Supreme Court unravelled some messy litigation where a conservator was appointed for a minor, but was deemed by the lower courts as having forfeited his exclusive power to bring, defend or participate in legal proceedings for his ward pursuant to OCGA […]
Form: Consent to Criminal Background Check
Below is an exemplar consent to a criminal background check. These are required in most guardianship cases and some probate cases.
How to Communicate with Courts, Parties in Litigation and Others
There are times when formal “legal” communication is necessary. This post addresses several instances regarding how that can be done. It is not meant to be all inclusive and, in many cases, specific communication rules apply. Beginning a lawsuit: When you begin a lawsuit, a summons must be served on the Defendant(s). Generally, Rule 4 […]
Probate Court must make findings of fact and conclusions of law when requested
In the Estate of T.M.N. (Ga. Ct. App. 6/13/2022), Quanda Jessie served as conservator of her minor child’s estate and had done so since 2016. The primary asset in the conservatorship estate was a wrongful death recovery, although Social Security survivor’s benefits were also paid to the child. Jessie updated the asset management plan and […]
Conservator’s settlement for minor children upheld
In Smith v. Parks Hotels & Resorts, Inc. (Georgia Ct. App. June 8, 2022), the mother of five children was killed by her boyfriend while she was cleaning a room as a Hilton employee. The probate court appointed a conservator for the minor children who filed a Worker’s Compensation claim. The claim was settled for […]
Probate Court’s Order on Emergency Guardianship is not appealable
On May 20, 2022, the Georgia Court of Appeals issued its Order in In re Estate of Brenda Elizabether Strother (Ward) (Appeal No. A22A0210). There, two daughters filed a petition for emergency guardianship, alleging two members of Brenda’s Jehovah’s Witness church (Robertson and Lewis), named in a 2020 advance directive were refusing to authorize emergency […]
Elder Law and Special Needs Law News Roundup – 5-20-2022
We regularly post links to news articles and other resources related to Elder Law and Special Needs Law. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. Some cited resources are for professionals, but most are news or other helpful articles we […]
Appeal Challenging Georgia’s Equitable Caregiver Statute was moot
In McAlister v. Clifton (Ga. 4/19/2022), the Georgia Supreme Court heard a case challenging the equitable caregiver statute, O.C.G.A. § 19-7-3.1. There, the trial court awarded Wendi Clifton, McAlister’s domestic partner, visitation rights to McAlister’s adopted daughter, Catherine. McAlister contended the equitable caregiver statute was unconstitutional facially and as applied to Clifton. McAlister also appealed […]
News Roundup – 2/25/2022
February is American Heart Month! Read President Biden’s Proclamation on American Healrth Month 2022 We regularly post links to news articles and other resources we believe might be of interest to our viewers. We focus on general news, health and healthcare news, special needs news, events, government sources, financial and retirement news and legal news. […]
Form: Guardian’s Personal Status Report
Guardians must file a personal status report within sixty (60) days after appointment, and then annually, reporting the ward’s location, condition and any unmet needs. Although these forms tend to vary from court to court, unless the court directs that a different form be used, the following is an example of what guardians must file: […]
Form: Conservator’s Annual Return (or Final Return)
Initially, a conservator must file an inventory and asset management plan within 60 days after appointment. Each year a conservator must file an annual return and a final return must be filed when the conservatorship terminates (or when after the ward’s death). Unless the applicable Probate Court directs that a different form be used, the […]
Appeal Route From Article 6 Probate Court is to Court of Appeals
Appeal Route From Article 6 Probate Court In Spence v. Dep’t of Behavioral Health and Developmental Disabilities, 359 Ga. App. 603 (2021), Jermaine Spense was involuntarily committed as a hospital inpatient. Spence sought review after the Department sought an order of continued hospitalization of Spence pursuant to OCGA § 37-3-83. On April 18, 2019, the […]
Conservator/County Administrator appointed ex-officio administrator of ward’s estate
In In re Estate of Brown, 357 Ga. App. 869, 850 S.E.2d 503 (2020), the Fulton County Probate Court appointed Ann Herrera as conservator for Leon Brown in 2011. After Brown died, Herrera filed a petition for letters of administration and Brown’s sister, Linda Glover, objected. Glover argued that Brown was a resident of Henry […]
Form: Health Values Questionnaire
In addition to a health care advance directive, one way to create evidence regarding your health treatment wishes and end-of0life wishes is to complete a health values questionnaire. One of the issues in Cruzan and Schiavo was the absence of adequate evidence demonstrating what the patient would want if she could speak for herself. Wouldn’t […]
Probate Court May Restrict a Conservator’s Power to Spend Ward’s Income
In In re Estate of Jenkins, 358 Ga. App. 254 (2021), the ward (Shaun Jenkins) sustained profound injuries as an infant due to malpractice. Jenkins received a settlement giving him annual income of $337,000 (or about $28,000 per month). The probate court limited the Conservator’s spending to $17,000. In 2019, the Conservator purchased a disabled-accessible […]
Form: Georgia Conservator’s Return
In Georgia, a Conservator must file an annual return and a final return. The current form appears below. For the most part, this form requires a check-book type entry, listing all funds coming in and all funds going out. One mistake many conservators make which adds to the book-keeping burden is maintaining multiple accounts. Multiple […]
Standby Guardians
A parent or a guardian (each a “designated individual”) may appoint a standby guardian of a minor. O.C.G.A. § 29-2-10. Upon determination that the designating individual is unable to care for the minor, the standby guardian, without judicial intervention, may assume all rights, duties and responsibilities of guardianship of the minor. The standby guardian must […]
Involuntary Hospitalization and Treatment of Involuntary Patients
The procedure commonly referred to as a “1013” is governed by O.C.G.A. Title 37, Chapter 3 (§ 37-3-41 et seq).* The procedure applies to individuals who present a substantial risk of imminent harm to himself, herself or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability […]
