Guardianship Book Chapter 2: Initiating the Action and Overview

The Petition
A Guardianship or Conservatorship is initiated by filing a petition. National College of Probate Judges (“NCPJ”) Standard 3.3.1 indicates the petition should be as simple as possible to obtain, complete, and process. It should be verified and require at least the following information: (1) a description of the nature and extent of the functional limitations in the respondent’s ability to care for him- or her-self; (2) representations that less intrusive alternatives to guardianship have been examined; and (3) the guardianship powers being requested.

Note: Click here for a more concise outline of process and timeline.

Essential elements of a Georgia petition appear at O.C.G.A. § 29-4-10(b) for a guardianship petition, and O.C.G.A. § 29-5-10(b) for a conservatorship petition (Note 1). In Tennessee, the essential elements of a conservatorship petition appear at T.C.A. § 34-3-104. See also Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (hereinafter “UGPPA”), § 302(b). (Note 2).

Effective January 1, 2022, a Tennessee petition must include the name, age, mailing address, relationship of the proposed conservator, statement of any felony or misdemeanor conviction of the proposed conservator, and, if the proposed conservator is not the petitioner, a statement signed by the proposed conservator acknowledging awareness of the petition and a willingness to serve. The petition must also include current copies of the following reports on the proposed conservator: (A) A search of the department of health’s registry of persons who have abused, neglected, or misappropriated the property of vulnerable persons, established by title 68, chapter 11, part 10; and (B) A search of the national sex offender registry maintained by the United States department of justice. See revised T.C.A. § 34-3-104.

A Georgia petition must be verified and signed by a co-petitioner, or must be presented with the affidavit of an examining physician, psychologist, or licensed clinical social worker who examined the alleged ward within 15 days prior to the filing of the petition. O.C.G.A. § 29-4-10(c).

Emergency Petitions
O.C.G.A. § 29-4-14 provides for the appointment of an emergency guardian in certain cases. The emergency petition may be filed by any interested person, including the proposed ward. O.C.G.A. § 29-4-14(a). The Petition must state jurisdictional facts, the name, address and county of domicile of the proposed ward and the petitioner, the reasons for the emergency petition, as well as a statement of the reasons why a regular petition is not appropriate. The facts must establish an immediate and substantial risk of death or serious physical injury, illness or disease unless the emergency petition is granted. O.C.G.A. § 29-4-14(b)(4). The court must review the petition for probable cause. O.C.G.A. § 29-4-15(a). If there is no probable cause for the petition, then it must be dismissed. If there is probable cause, then a hearing must be held not sooner than three days nor later than five days after the petition is filed. The court must order evaluation of the proposed ward and have all pleadings served on him or her, but an emergency guardian is appointed, with or without prior notice to the ward, to respond to the immediate threatened risk. O.C.G.A. § 29-4-15(c)(5). The emergency guardianship terminates within 60 days, unless earlier terminated by dismissal or appointment of a guardian (Note 3).

Emergency petitions are disfavored due to the ex parte nature of the proceeding. In In the Interest of Farr, 322 Ga. App. 55 (2013), a hospital sought appointment of an emergency guardian for Claudine Farr, a patient (Note 4). The Petition and attached affidavits alleged Farr “was incapacitated by reason of end stage Parkinson’s disease, diabetes mellitus, recurring infections, contracted extremities and respiratory failure to the extent that she lacked sufficient capacity to make or communicate significant responsible decisions concerning her health or safety, and that there was an immediate, clear and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.” Farr’s son objected to the petition and the Court noted “the only apparent emergency identified by [the hospital] was the hospital’s desire to transfer Farr out of its acute-care facility and into what it believed to be a more appropriate facility” for nursing home care. The probate court denied the petition for an emergency petition, rather than a petition for a permanent guardian, because the so-called emergency was not the type described in O.C.G.A. § 29-4-14(b)(4). The probate court’s decision was affirmed (Note 5).

Who can file a Petition?
In Georgia, any interested person or persons (Note 6), including the proposed ward, may file a petition for the appointment of a guardian or conservator. O.C.G.A. § 29-4-10(a); § 29-5-10(a). In Tennessee, a petition for the appointment of a guardian may be filed by any person having knowledge of the circumstances necessitating the appointment of a guardian. T.C.A. § 34-3-102 (Note 7).

Standard Forms
Some States have standardized forms used in guardianship and conservatorship proceedings. Standard Georgia forms are found at https://georgiacourts.gov/probate/probate-behind-the-bench/standard-forms/. Standard Tennessee forms appear on the Hamilton County, Tennessee, website for the Clerk and Master at http://www.hamiltontn.gov/courts/ClerkMaster/Forms/default.htm. In most instances, lawyers may modify or deviate from standard forms if they disclose any changes made to the standard form.

Initial Screening
After the petition is filed, an initial screening should occur to divert inappropriate petitions. NCPJ Standard 3.3.2; O.C.G.A. § 29-4-11(a); O.C.G.A. § 29-5-11(a). In Georgia, the initial screening is based on the petition and is performed by the Court. “The probate judge must review it to determine whether there is probable cause to believe that the adult actually is in need of a guardian.” (Note 8). If the court determines there is no probable cause, then the petition is dismissed. O.C.G.A. § 29-4-11(b); O.C.G.A § 29-5-11(b).

Notice
Notions of due process permeate the notice requirements in each State’s guardianship statute. In Georgia, if there is probable cause for the petition, the Court must give the respondent notice of the action, serving all pleadings on the respondent. O.C.G.A. § 29-4-11(c); O.C.G.A. § 29-5-11(c). The notice must: (1) be personally served; (2) inform the ward that a petition has been filed and that the ward has a right to attend any hearing and if a guardian is appointed that the ward may lose important rights including control over management of his or her person or property; (3) inform the ward of the time and place for submitting to an evaluation; and (4) inform the ward of his or her right to counsel and that counsel shall be appointed within two days of service unless the proposed ward indicates that he or she has retained counsel. O.C.G.A. § 29-4-11(c)(1); O.C.G.A § 29-5-11(c)(1).

In addition to the alleged ward, the following persons must be served with the petition: (1) the ward’s spouse, (2) all children (if there are no children, then at least two other relatives or friends if there are no relatives), (3) any person nominated as guardian by the ward, and (4) any person nominated by the ward’s spouse, child or parent to serve as guardian. O.C.G.A. § 29-4-11(c)(3); O.C.G.A. § 29-5-11(c)(3). Service by mail is permitted for these individuals.

Guardian Ad Litem
Assuming probable cause exists for the petition to move forward, a guardian ad litem may be appointed. O.C.G.A. § 29-4-11(c)(4); T.C.A. § 34-1-107; NCPJ Standard 3.3.4. The National College of Probate Judges refers to this individual as a “court visitor.” The role of the guardian ad litem is to act as the eyes and ears of the court. Radford, supra, § 9-2. (Note 9). Although the guardian ad litem is “to represent the interests” of the alleged ward, O.C.G.A. § 29-9-2(a), he or she is prohibited from representing the ward as counsel. O.C.G.A. § 29-9-2(b) (Note 10).

In Tennessee, the guardian ad litem has the following statutory duties:

(A) Verify that the respondent and each other person required to be served or notified was served or notified;
(B) Consult with the respondent in person as soon as possible after appointment;
(C) If possible, explain in language understandable to the respondent the:

(i) Substance of the petition;
(ii) Nature of the proceedings;
(iii) Respondent’s right to protest the petition;
(iv) Identity of the proposed fiduciary; and
(v) Respondent’s rights as set forth in § 34-3-106; and

(D) Determine if the proposed fiduciary is the appropriate person to be appointed. (Note 11)

If a fiduciary is sought to manage the alleged ward’s property, then the guardian ad litem must also investigate the:

(A) Nature and extent of the respondent’s property;
(B) Financial capabilities of the proposed fiduciary; and
(C) Proposed property management plan.

To some extent, the guardian ad litem’s role is to further due process by ensuring that appropriate disclosures are made and that all parties adhere to the process. The guardian ad litem also serves a protective role by ensuring that significant information is brought to the court’s attention if not otherwise disclosed by the parties (e.g., whether the nominated conservator is currently mired in bankruptcy proceedings). Finally, although the guardian ad litem is not the ward’s advocate, he or she can ensure that the alleged ward’s voice is heard. For example, if the alleged ward expresses a choice regarding who should serve as guardian or conservator, the guardian ad litem might include that information in his or her report to the court.

Does the Guardian Ad Litem Have a Duty to Protect the Ward (Physically) Prior to Appointment of a Guardian?

The Court of Appeals answered this question in Garrett v. Dep’t of Human Servs., 355 Ga. App. 714 (2020). There, the ward walked into traffic and was killed two days after a final order was issued appointing DHS was guardian. Her family sued DHS and the GAL alleging negligence and alleging the GAL had a duty to protect the ward until a guardian was appointed. The Court of Appeals held:

we discern no legal duty that Fields could have breached under these facts. Former OCGA § 29-9-2 (a) limits a GAL’s representation of a proposed ward to “proceedings relating to guardianship or conservatorship of that individual.” (Emphasis supplied.) “The [GAL’s] duty is to protect the [proposed] ward’s rights” during such a proceeding, and neither this Code section nor Fields’s appointment as guardian ad litem created a duty on the part of Fields to at all times actively prevent Garrett from sustaining physical injury or the authority to prevent Garrett from movement from her home. Accordingly, the trial court did not err by dismissing the Plaintiffs’ claims against Fields. (Prior versions of the Georgia Code are available at Justia – although the language at issue in this case appears to be substantially similar, the 2013 version of Section 29-9-2 is here).

Legal Counsel
The constitution provides that no State shall deprive any person of life, liberty, or property, without due process of law. Arguably, due process requires appointment of counsel in the guardianship process. (Note 12). In Georgia, legal counsel must be appointed unless the alleged ward retains his or her own attorney. Some States do not require the appointment of counsel because it would add an additional layer of cost in situations where the alleged ward might not be able to pay. After consulting with probate judges and numerous attorneys, this protective rule was intentionally retained when Georgia revised its guardianship code in 2005. See Radford, supra, § 4-3.

In Tennessee, an attorney ad litem may be appointed on the request of the respondent or on the recommendation of the guardian ad litem. T.C.A. § 34-1-125. (Note 13). The duties of an attorney ad litem and a guardian ad litem, while overlapping somewhat, are different; therefore, appointment of an attorney ad litem is not a substitute for the guardian ad litem. See In re Allen, — S.W.3d —, 2010 Tenn. App. LEXIS 810 (Tenn. Ct. App. Dec. 29, 2010).

An interesting dilemma in guardianship cases is whether the alleged ward has authority to enter into an attorney-fee agreement. A law firm allegedly hired by the ward after the petition was filed was disqualified in In re Allen. There, relying on prior case law (Note 14), the court found that a lawyer’s authority to represent a client must be demonstrated when challenged. The law firm allegedly representing the ward also appeared on behalf of an adult child who filed a competing petition for conservatorship. The entry of appearance was filed after the court appointed a guardian ad litem, whom it chose to ignore. “Knowing full well that the Ward’s fate was in the court, that the Ward’s doctor of longstanding was opining that the Ward could not care for his person and his property, and that the court had entered an order appointing an attorney ad litem the Freeman attorneys interviewed the Ward and accepted a check drawn on the Ward’s account for their potential retainer without so much as acknowledging the court’s or attorney’s existence.” These facts were sufficient to disqualify the law firm from representing the ward without reaching the alleged conflict of interest between the ward and adult child.

In Levenson v. Oliver, 202 Ga. App. 157 (1991), distinguishable because it involves restoration of rights after a guardianship was established, a dispute erupted over attorney’s fees. The case began when the Department of Family & Children’s Services filed a petition to restore Ingeborg Rath’s rights. Attorney Louis Levenson filed an entry of appearance for Rath and a demand for jury trial. Meanwhile, reports were returned to the court from the guardian and court appointed physician and applied psychologist, all supporting restoration of Rath’s rights. Apprently Levenson submitted a bill in the amount of $6,301.25 approximately two weeks prior to a court order restoring Rath’s personal rights, but extending the conservatorship; Rath’s conservator objected to the attorney fee bill. Among other reasons for the objection, the conservator stated that Levenson’s bill was more than half the amount in Rath’s estate and that “a reasonable attorney fee would be $3,000.” The probate court apparently agreed and awarded Levenson fees in the amount of $3,500. Levenson’s appeal was rejected and the decision below was affirmed. “We find no authority which authorizes an incapacitated adult to hire an attorney without permission from the court or the legal guardian. The purpose of appointing a guardian for an incompetent is to protect the incompetent from personally wasting his estate or allowing others to do so. It would be illogical to appoint a guardian to oversee the estate of an incompetent, and then allow the incompetent to hire attorneys and have the attorneys act without express permission from the guardian or the court. Thus, where a guardian is appointed, no one except the guardian can act for or on behalf of the incompetent without express authority or appointment.” (Note 15). Because there was seeming acquiescence to Levenson’s representation of Rath, with only the value of services being challenged, the probate court’s award of $3,500 was affirmed.

The lesson seems to be, at least after probable cause for a hearing is established, attorney fee agreements should be approved by the court. (Note 16).

More recently, a Florida Court held that prior to a determination of incapacity, the alleged ward has a statutory right to hire and substitute his own counsel. In Foster v. Radulovick, Case No. 2D20-2988 (Fla. Ct. App. 2nd Dist. 12/17/2021), the Court unwound an entire guardianship proceeding, including a determination of incapacity entered after the ward’s motion to substitute counsel was denied. Originally, a Petition was filed by the Department. Following that Petition, an emegency guardian was appointed. Foster filed a motion to substitute his own counsel for court appointed counsel. Foster’s motion was denied. Subsequent to Foster’s motion being denied, the trial court found Foster lacked capacity. When Foster filed a petition for writ of certorarai, which was granted, the Court of Appeals found that Foster was an alleged ward at the time his motion to substitute counsel was filed and, as such, Foster had a right to representation of his choice. After the Court of Appeals ruled, Foster filed a Petition for clarification because the responsents took the position that Foster’s incapacity determination essentially rendered the issue moot. Not so fast said the Court of Appeals. “[T]he only inference that may reasonably be drawn from this court’s opinion quashing the denial of his motion to substitute counsel is that the motion should have been granted at the time it was filed and that Mr. Foster should have been represented by his choice of counsel during the subsequent proceedings to determine his incapacity.” If Foster was represented by counsel of his choice, the result could have been different so Foster was entitled to a do-over.

Court Initiated Evaluations
Typically, medical or psychological testimony is required before a guardian or conservator may be appointed. (Note 17). This testimony, which is often provided by affidavit, may be different from evidence secured by a party litigant; parties may supplement the court mandated pre-hearing examination with other medical or psychological evidence. This distinction is illustrated in Ex parte Casey, 2012 Ala. LEXIS 7 (January 20, 2012). In Casey, a 74 year old, Jo Ann, filed for divorce in 2008. Her husband defended, alleging she lacked capacity and that the divorce petition was the product of undue influence. Although the delay is unexplained, James (Senior), her husband, filed a petition for letters of guardianship and conservatorship in January 2010, prior to the hearing on the divorce petition. Initially the probate court appointed Dr. Paul Roller, a geriatric physician, to examine Jo Ann and file a report. Dr. Roller’s appointment did not preclude later examinations by Dr. Rebecca Jones and Dr. Olga Belotserkovskaya. (Note 18).

In Georgia, a post-petition examination by a physician, psychologist or licensed clinical social worker is required. (Note 19). “The court shall appoint an evaluating physician who shall be a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or licensed clinical social worker ….” O.C.G.A. § 29-4-11(d)(1). The evaluator must explain the purpose of the evaluation. The ward may remain silent. Anything said by the ward during the evaluation is privileged and inadmissible. The ward’s legal counsel may attend the evaluation, but may not participate. O.C.G.A. § 29-4-11(d)(2). A written report must be filed with the court within seven (7) days after the evaluation and served on the proposed ward, his or her counsel and the guardian ad litem, if any. O.C.G.A. § 29-4-11(d)(4). Hearsay does not appear to be an issue since the court has specific authority to consider the evaluation report and any response filed by the proposed ward. O.C.G.A. § 29-4-12(d)(4); § 29-5-12(d)(4).

What Happens If the Proposed Ward Refuses to Participate in the Evaluation?

In In re Estate of Davis, 330 Ga. App. 97 (2014), a proposed ward refused to meet with the court appointed evaluator so the probate court dismissed the petition for guardianship and conservatorship. The case began when, on October 1, 2013, Vicky Davis and Tabitha Davis filed a verified petition for appointment of a guardian and/or conservator for Radric Davis a/k/a Radric Dudley. The petition alleged:

“the proposed ward had a history of psychological problems,” has been institutionalized on at least three occasions, and has been diagnosed with bipolar disorder and schizophrenia. It also alleged that as a result of his psychological problems and abuse of a variety of drugs, the proposed ward has engaged in violent behavior, including assaulting a patron in a bar and almost coming to blows with another shopper at a mall, and that he sent out messages via Twitter describing in “graphic and profane terms” alleged sexual escapades with various women. The petition also stated that court records indicate the proposed ward has been in jail in Fulton County at least five times since 2005 on charges involving drugs, aggravated assault, and aggravated assault with a deadly weapon, although the court records are not attached to the petition. The petitioners further alleged that although the proposed ward has made millions of dollars over the course of a successful music career, he has no savings, no insurance, and has failed to pay income taxes, resulting in significant liability to the Internal Revenue Service. The petitioners sought to have the proposed ward’s mother, Vicky Davis, appointed guardian of his person and conservator of his property.

The probate court found there was sufficient evidence to believe the proposed ward needed a guardian and/or conservator and ordered an evaluation. The scheduled evaluation did not take place initially because the proposed was was in jail and had been transferred from Fulton to DeKalb County. On November 22, 2013, a social worker attempted to evaluate the proposed was at the DeKalb County jail but he refused to meet without his attorney present. The attorney did not show up and the social worker filed report with the court detailing the proposed ward’s refusal to meet. Thereafter, without having an evaluation, the probate court dismissed the petition.

Petitioner filed a motion to reconsider, also fling a transcript of a probation revocation hearing where a psychiatrist who had examined the proposed ward and his medical records testified about the proposed ward’s need for inpatient psychiatric treatment. According to the psychiatrist, the medical records show that the proposed ward has been off of his prescribed anti-psychotic and mood stabilizing medications and has a history of bipolar disorder and schizophrenia and substance abuse. In his meeting with the proposed ward, the psychiatrist learned that he has a co-morbid substance use disorder, specifically the use of marijuana and a prescription cough syrup containing codeine, which can be extremely addictive, and promethazine, which can cause psychosis. The psychiatrist was unable to state whether the proposed ward’s behavior was based more on the primary psychiatric issue or on the substance abuse issue. The probate court denied the motion for reconsideration and Petitioners appealed.

The Court of appeals reversed, explaining:

OCGA §§ 29-4-11, 29-4-12, 29-5-11 and 29-5-12 set forth frameworks for consideration of petitions for guardianship and for conservatorship of proposed wards. Upon the filing of such a petition, the court must review it and make an initial determination of whether there is probable cause to believe that the proposed ward is in need of a guardian or conservator. OCGA §§ 29-4-11 (a) and 29-5-11 (a). If the court makes an initial determination that probable cause does not exist, it is to dismiss the petition. OCGA §§ 29-4-11 (b) and 29-5-11 (b). But, if the court makes an initial finding of probable cause, the court “shall” order an evaluation of the proposed ward. OCGA §§ 29-4-11 (c) (1) (C), (d) (1) and 29-5-11 (c) (1) (C), (d) (1). And upon that initial review of the petition and determination that there is probable cause to believe that the proposed ward is in need of a guardian or conservator, the court must appoint a licensed physician, psychologist, or clinical social worker to evaluate the proposed ward. OCGA §§ 29-4-11 (a), (d) (1) and 29-5-11 (a), (d) (1).

Once appointed, the physician, psychologist or social worker is to conduct the evaluation, which may include a self-report of the proposed ward, questions and observations of the proposed ward, and a review of medical records. OCGA §§ 29-4-11 (d) (3) and 29-5-11(d) (3). During the evaluation, the proposed ward may remain silent and may have legal counsel present, although counsel may not participate in the evaluation. OCGA §§ 29-4-11 (d) (2) and 29-5-11 (d) (2). The physician, psychologist or social worker must then file a written report with the court no later than seven days after the evaluation. OCGA §§ 29-4-11 (d) (4) and 29-5-11 (d) (4). The report is to state, among other things, the circumstances and elements of the evaluation, list all persons and sources of information consulted, describe the proposed ward’s mental and physical condition, and describe the needs of the proposed ward. OCGA §§ 29-4-11 (d) (5) and 29-5-11 (d) (5).

After the evaluation report has been filed, the court is to review the report and the pleadings in order to make another probable cause determination. OCGA §§ 29-4-12 (a) and 29-5-12 (a). If, after the review, the court finds no probable cause to support a finding that the proposed ward is in need of a guardian or conservator, then the court is to dismiss the petition. 29-4-12(b) and 29-5-12 (b). But, if the court finds probable cause, it is to schedule a hearing on the petition. OCGA §§ 29-4-12 (c) and 29-5-12 (c).

Under this statutory framework, a finding and order of dismissal can be made only after the court has reviewed the required evaluation report. So, the undisputed facts in the record establish that the trial court erred in failing to require that the statutorily-mandated evaluation take place and that the evaluation report be filed before making a probable cause determination and dismissing the petition. Although the proposed ward is not required to speak at the evaluation, this framework requires that the evaluation take place. Accordingly, the probate court should have rescheduled the evaluation. Because the court failed to do so and improperly dismissed the petition without an evaluation having been conducted and without the requisite evaluation report having been submitted for the court’s consideration, the dismissal order must be reversed and the case remanded with direction that the evaluation be conducted and the report submitted.

In Tennessee, an examination conducted within ninety days prior to the petition is sufficient, but a post-petition examination may be ordered on motion by the petitioner, the respondent, the adversary counsel, the guardian ad litem, or by the Court on its own initiative. T.C.A. § 34-3-105 (a). Each physician’s or psychologist’s sworn report shall contain the following: (1) The respondent’s medical history; (2) A description of the nature and type of the respondent’s disability; (3) An opinion as to whether a conservator is needed and the type and scope of the conservator with specific statement of the reasons for the recommendation of conservatorship; and (4) Any other matters as the court deems necessary or advisable. T.C.A. § 34-3-105(c).

Additional Court Screening
In Georgia, the court should review the report from the court ordered examination to determine whether probable cause exists for a hearing. O.C.G.A. § 29-4-12(a). If there is no probable cause to support a finding that the ward is in need of a guardian or conservator, the petition is dismissed. O.C.G.A. § 29-5-12(b).

It does not necessarily follow that a guardianship or conservatorship will be imposed following a medical, psychological, or other finding of incapacity. In McCallie v. McCallie, 660 So.2d 584 (Ala. 1995), Jackie McCallie filed a petition for guardianship and his brother, David, filed a petition to dismiss; David alleged that, while their mother lacked capacity, he held a power of attorney so no guardianship was necessary. Thus, a lack of capacity was apparently stipulated by the parties. The court nonetheless dismissed the petition. Jackie appealed, arguing that the stipulation of incapacity required imposition of a guardianship. In affirming, the court held that a guardian is appointed only when there is a finding that a basis for a guardianship has been established. In that case, with the existence of a power of attorney, the necessity of a guardianship was not established notwithstanding the stipulation. (Note 20). See also Cruver v. Mitchell, 289 Ga. App. 145 (2008), discussed infra.

Hearing
If probable cause of impairment remains following the court initiated evaluation, then a hearing must be scheduled. O.C.G.A. § 29-5-12(c)(1). In Georgia, a trial by jury may be demanded in counties where the population exceeds 96,000 and the judge has been a practicing attorney for at least 7 years. O.C.G.A. § 15-9-121. The rules of evidence applicable in all civil cases apply. O.C.G.A. § 29-5-12(c)(3). The standard of proof is clear and convincing evidence of the need for a guardianship or conservatorship. O.C.G.A. § 29-5-12(c)(4). (Note 21).

In Tennessee, the respondent has the right to: (1) On demand by respondent or the guardian ad litem, a hearing on the issue of disability; (2) Present evidence and confront and cross-examine witnesses; (3) Appeal the final decision on the petition; (4) Attend any hearing; and (5) Have an attorney ad litem appointed to advocate the interests of the respondent. T.C.A. § 34-3-106. The hearing must be held on the petition not less than seven (7) or more than sixty (60) days after service of the petition or appointment of a guardian ad litem, whichever is later. T.C.A. § 34-1-108(a). The standard of proof is clear and convincing evidence that a conservatorship is necessary. T.C.A. § 34-1-126.

The right to a formal hearing may be waived unless required by statute. In Conservatorship of Deidre B., 180 Cal. App.4th 1306 (2010), the ward’s appointed counsel consented to reestablishment of a conservatorship and waived the conservatee’s right to a formal hearing. (Note 22). On appeal, the court found no error in accepting counsel’s stipulation. The court indicated that a remedy still exists if the conservatee later suggests that the stipulation was improperly made; the conservatee could request a rehearing in light of the court’s continuing jurisdiction.

Presence of the Ward
The ward’s presence at the hearing is a due process right that may be waived. This issue was litigated in Conservatorship of John L., 105 Cal. Rptr.3d 424 (Cal. 2010). There, an individual with an alleged mental illness was the subject of a proceeding under California’s Lanterman-Petris-Short Act (LPS Act or Act; Welf. & Inst. Code, § 5000 et seq.). (Note 23). John L.’s counsel waived his right to appear at the hearing. Specifically, his appointed counsel reported: “Your [H]onor, I have visited with him at Telecare Choices. Recently he was here. He had requested a writ which he took off calendar. At any rate Mr. L[.] is doing much better. We discussed the conservatorship and on Friday then he wished to put it over until yesterday so that he could think about it. When we met he indicated that at this time he was not contesting the conservatorship. He did not want to be present in court. So we would ask the court to excuse his presence.” After receipt of this report, the hearing went forward and a conservatorship was established.

In reviewing the decision below, the court found that procedures for establishing a conservatorship include a number of requirements pertaining to notice, hearing and trial rights, and other matters. In evaluating what due process requires, the court found that the answer must be viewed in context. “Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error. In conservatorship cases, we balance three factors to determine whether a particular procedure or absence of a procedure violates due process: the private interests at stake, the state or public interests, and the risk that the procedure or its absence will lead to erroneous decisions.” In John L.’s case, there was no denial that he informed his counsel that he did not wish to be present for the hearing. Accordingly, the court was authorized to balance the respective policy concerns and there was no error in waiving his presence and the court was not required to, essentially, take the case to him to ensure his presence at the hearing.

The Georgia code similarly allows the ward or the ward’s counsel to waive the ward’s presence at the hearing. O.C.G.A. § 29-4-12(d)(1); § 29-5-12(d)(1).

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Notes:

  1. The standard form including these elements is Form 12, available at https://georgiacourts.gov/probate/probate-behind-the-bench/standard-forms/.
  2. The Uniform Guardianship and Protective Proceedings Act was cited in a prior version of this book, but the act was revised with adoption of the Uniform Guardianship, Conservatorship and Other Protective Arrangements Act in 2017. NAELA describes the 2017 act as a comprehensive guardianship statute for the twenty-first century, promoting person-centered planning.
  3. See O.C.G.A. §§ 29-5-14 through 29-5-16 relating to emergency conservators. The test with respect to conservators is whether there is an immediate and substantial risk of irreparable waste or dissipation of the proposed ward’s property. O.C.G.A. § 29-5-14(b)(4).
  4. It is worth noting that no individual may be appointed as guardian who is an owner, operator or employee of a long-term care or other caregiving institution or facility at which the adult is receiving care, unless related to the adult by blood, marriage, or adoption. O.C.G.A. § 29-4-2(b)(3). Thus, although the hospital might be an interested person capable of filing a petition, unless the Court found it was not providing care, then it should be ineligible to serve as guardian.
  5. The court cited In re Holloway, 251 Ga. App. 892 (2001), where an emergency guardian was appointed (although that discussion is dicta and not germane to the appeal). In that case, appointment of an emergency guardian was warranted because an 86 year old fell and required emergency surgery and family disputes prevented her children from making a decision.
  6. “Interested person” means any person who has an interest in the welfare of a minor, ward, or proposed ward, or in the management of that individual’s assets and may include a governmental agency paying or planning to pay benefits to that individual. O.C.G.A. § 29-1-1(9).
  7. In most states, any interested person can file the petition. Elder Law Answer Book, Q. 11:15.
  8. Radford, supra, § 4-3; citing O.C.G.A. § 29-4-11(a).
  9. The guardian ad litem is, by definition, “not an advocate for the respondent.” Tenn. Code Ann. § 34-1-107(d)(1). The guardian ad litem’s primary duty is to the court with the focus of that duty being “to determine what is best for the respondent’s welfare.” In re Allen, — S.W.3d –, 2010 Tenn. App. LEXIS 810 (Tenn. Ct. App. Dec. 29, 2010).
  10. There is a distinct difference between the role of the attorney as an advocate and a guardian ad litem. Comment to UGPPA § 5-115. A case involving a minor, In the Interest of W.L.H., 314 Ga. App. 185 (2012), indicates that the purpose of a guardian ad litem in civil cases is to act for a person who is not sui juris. At least in the context of that litigation, the apparent distinction between guardian ad litem and attorney ad litem is that the guardian ad litem stands in the shoes of the ward.
  11. These duties largely mirror those in UGPPA § 5-305(c) and (d).
  12. Legal counsel must not confuse their role with that of the guardian ad litem. When an attorney is appointed for the alleged ward, the purpose for counsel is to advocate for the client’s expressed wishes and not to determine their best interests. Gross v. Rell, 304 Conn. 234 (2012). The appointment of counsel may (or may not) be required for the ward, but no other participant has a right to appointed counsel in an adult guardianship proceeding. See In re Protective Proceedings of Freddy A., 2012 Alas. LEXIS 46 (March 28, 2012), where the court affirmed the trial court’s refusal to appoint counsel for the ward’s mother in a petition to modify the terms of her son’s guardianship.
  13. There is, however, no requirement that an attorney be appointed in all Tennessee cases. In In re Trout, 2009 Tenn. App. LEXIS 693 (October 15, 2009), one of the grounds for appeal was failure to appoint counsel for the alleged ward. There, counsel for another party requested appointment of an attorney and the court properly rejected that request. Ms. Trout, when questioned by the guardian ad litem, requested appointment of an attorney, but failed to do so until the trial had started and the court declined to delay the hearing given the exigencies of her circumstances. That decision was affirmed on appeal, in part, because Ms. Trout was previously informed of her right to secure representation and she had failed to do so.
  14. In re Ellis, 822 S.W.2d 602 (1991).
  15. Citing Matter of Estate of Kutchins, 169 Ill. App.3d 637, 523 NE2d 1025 (1988).
  16. Assuming the alleged ward is capable of voicing a preference concerning lawyers, allowing the ward to select his or her lawyer is entirely consistent with the ward’s right to select a guardian or conservator. It would seem that good cause would be necessary to deny a ward’s motion to retain a specific lawyer.
  17. In Conservatorship of G.H., 227 Cal. App. 4th 1435 (Cal. App. 2014), the trial court was reversed for terminating a proceeding in favor of petitioner where the ward failed to submit to a mental examination. Essentially, a guardianship was imposed without the examination and without an evidentiary hearing which was an abuse of discretion.
  18. Ex parte Casey, while illustrative of the use of multiple examinations, dealt with whether a guardianship should have been transferred to another court.
  19. In In re Estate of Davis, 330 Ga. App. 97 (Ga. App. November 21, 2014), it was error to dismiss a petition without evaluation after finding sufficient probable cause to warrant filing of the petition. In Davis, the Court appointed a social worker to perform the evaluation. The social worker went to the jail, where the putative ward was being held, and the ward refused the evaluation unless his attorney was present. On appeal, the Court held that once a finding of probable cause is made, the probate court “shall” order an evaluation. Dismissal without the required evaluation was error.
  20. “Most states have added threshold requirements for guardianship intervention – most commonly a finding that the guardianship is necessary to provide for the essential needs of the individual.” Assessment of Older Adults, supra, p. 7.
  21. In Autry v. Beckham, 2014 Ark. App. 692 (Ark. Ct. App. 2014), the trial court imposed a guardianship without requiring a professional evaluation or taking any professional evidence of incapacity. Although the issue was not raised below, the Court found that without the required professional evaluation, there was no evidentiary basis for the guardianship. Thus, the decision below was clearly erroneous. In Losh v. McKinley, 86 So.3d 1150 (Fla. App. 2012), a trial court was reversed after finding that a 93 year old widow lacked capacity. Two out of three examining doctors found that she was quite able to make her own decisions with her insight and judgment intact. The third recommended a limited guardianship. A fourth doctor examined Mrs. Losh after a conflict of interest arose and recommended a limited guardianship covering property management and gifts. However, that doctor indicated Mrs. Losh was alert, fully oriented, very well aware of circumstances and that she had an excellent general knowledge. At the hearing, Mrs. Losh testified in detail about her family, personal finances, property, health status and prescribed medications. At the conclusion of the hearing, the court expressed concern over Mrs. Losh’s vulnerability to undue influence and her ability to manager her property in the future. The Court of appeals reversed, finding that the evidence was not clear and convincing that Mrs. Losh lacked capacity. Although the trial court was well-meaning, “in our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights.”
  22. In California, the reestablishment hearing is governed by the same rules that govern an initial establishment hearing.
  23. The LPS Act authorizes the establishment of a conservatorship of a person who is gravely disabled as a result of a mental disorder. A conservatorship established under the LPS Act can last up to one year and authorizes involuntary detention, evaluation and treatment. The LPS Act went into effect on July 1, 1972 and set the precedent for modern mental health commitment procedures in the United States.

 

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