Guardianship Book Chapter 3: Issues Typically Contested

Risk Factors
Guardianship includes inherent risk. Risk carries with it the possibility of litigation. The following list of risk factors was developed by the Arizona Supreme Court Probate Committee (Note 1):

  • No family members.
  • Large estate.
  • Unprotected assets – unrestricted or non-bonded assets.
  • Dispute among parties, whether family or professional fiduciary.
  • Late or no inventory.
  • Late or no accountings.
  • Late or no annual guardianship reports.
  • Inaccurate record keeping, no automation.
  • No record keeping.
  • Unacceptable accounting practices.
  • Disproportionate or unusually large transactions.
  • Checks returned with insufficient funds or late charges.
  • Use of ATM or gift cards.
  • Guardianship only appointed but handling assets.
  • Health, business or personal problems of fiduciary – professional or family fiduciary.
  • Financial difficulty of fiduciary, tax liens, judgments or bankruptcy.
  • Difficulty in acquiring bond, especially with a professional fiduciary.
  • Failure to renew bond, pay premium or bond revoked.
  • For the professional, failure to renew license.
  • Disciplinary action by a professional licensing agency – family or professional.
  • Questionable fiduciary.
  • Questionable attorney.
  • Fiduciary with limited experience.
  • Singular responsibility and control of information by fiduciary.
  • Poor or no supervision of staff by professional fiduciary principal.
  • Ignore request by court, including orders to show cause.
  • Pattern of rebuffing requests for information by parties or attorneys.
  • No court appointed attorney.
  • Petition to withdraw by attorney.
  • Unauthorized gifts or loans.
  • Large fees – especially in relationship to overall assets and tasks accomplished.
  • No notice to interested parties or lack of documentation.
  • Pattern of complaints against fiduciary.
  • Fiduciary exclusively uses one vendor instead of a pool of vendors.
  • Transfer between bank accounts, especially near inventory or accounting due dates.
  • Professional fiduciary does not maintain written policies and procedures.
  • Expenditures not appropriate for client’s level of care and market rate for services.
  • Payment of interest or penalties in accounting summaries in addition to bank charges for insufficient funds.
  • Fiduciary not visiting client when appointed as guardian.

Many of these risk factors can be eliminated with pre-appointment investigations of potential fiduciaries. The Maricopa County Probate Court developed and piloted a Probate Evaluation Tool which allows court investigators to designate each new guardianship or conservatorship case as low, moderate or high risk. Other courts require potential guardians and conservators to complete a questionnaire (Note 2) and undergo a criminal background check (Note 3) for the purpose of minimizing risk. Completion of an asset management plan, Georgia’s Standard Form 58, also minimizes risk by front-loading a spending plan.

Standing
“The doctrine of standing invokes whether a particular litigant is entitled to have a court decide the merits of a dispute or of particular issues.” In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011). The issue of standing may arise in the guardianship itself, or in related proceedings. In Groves, once the trial court determined that Ms. Groves had capacity (a finding that was reversed on appeal), the petitioner had no standing to set aside gifts of real estate and personal property. Groves, at 348.

Intervention
An interested party might seek to intervene in the proceeding (Note 4). The petition may or may not be granted. In White v. Heard, 225 Ga. App. 351 (1997), the adult children of Elizabeth Bosch petitioned for appointment of a guardian for Elizabeth. Her grandson moved to intervene, contending a guardian was unnecessary. The trial court denied his motion and, on appeal, the court affirmed after finding that intervention as a right is only permitted where a statute grants an unconditional right to intervene. No such statute authorized the grandson’s intervention.

Jurisdiction and Venue
In some States, such as Georgia, venue includes a jurisdictional element. Subject matter jurisdiction is in the probate court, but venue is limited to the county where the alleged ward is domiciled or where he or she is found (Note 5). In Tennessee, the action must be brought in a court exercising probate jurisdiction or any other court of record of any county in which there is venue; venue is the county of residence of the alleged disabled person. T.C.A. § 34-3-101. See also UGPPA § 5-108. (Note 6). [Note: see discussion below regarding the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act. O.C.G.A. § 29-11-1 et seq.]

In In the Interest of M.P., 338 Ga. App. 696 (2016), a 20 year old autistic child split his time between North Carolina where his mother lived, and Chatham County, Georgia, where his father lived. After visiting his father, M.P. refused to go back to North Carolina. His father, Milton, filed a Petition for guardianship, citing M.P.’s need for supervision and safety. His mother, Yolanda, objected on various grounds, including jurisdiction. Citing the Georgia Supreme Court, the appeals court found:

“[t]here must be a concurrence of actual residence and the intention to remain[ ] to acquire a domicile. If a person actually removes to another place, with the intention of remaining there for an indefinite time as a place of fixed domicile, such place becomes his domicile.” Indeed, there must be “either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence.” Nevertheless, a person who is “mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile.” Lastly, we note that the question of domicile is “a mixed question of law and fact[,] and is ordinarily one for [the factfinder], and should not be determined by the court as a matter of law except in plain and palpable cases.”

The probate court found that while M.P. lacked capacity to make certain health and safety decisions, he was not so mentally incapacitated that he was incapable of changing his domicile. Additionally, in expressing his “adamant” desire to remain in Georgia to his attorney, M. P. was able to articulate some of the reasons underlying his decision. Specifically, M. P. indicated that he wanted to stay with his father so that he could participate in outside activities, explaining that in North Carolina, he was unable to participate in such activities and spent most of his time at home alone. In sum, because M.P. actually lived with family in Chatham County, and was adamant about remaining there, the probate court’s finding of personal jurisdiction was affirmed.

Failure to meet technical requirements
Although a deficient petition should be dismissed by the court, one which fails to meet the statutory criteria outlined above is subject to objection and may be dismissed. In Wilson v. James, 260 Ga. 234 (1990), the court reviewed a petition listing stepchildren instead of children as the persons to be notified of the petition. The court held that because there was no compliance with the notice requires of the code, the appointment of a guardian was void. The Wilson court cited Edwards v. Lampkin, 112 Ga. App. 128 (1965), aff’d 221 Ga. 486 (1965), which held that failure to provide the notice required under the guardianship statute prevents the court from acquiring the necessary jurisdiction to appoint a guardian.

Should a Guardian or Conservator Be Appointed?: The Standard
“The criteria for finding incapacity differ among states, but in all states, the law starts with the presumption of capacity.” (Note 7). While outdated standards required a finding that the alleged ward was an idiot, lunatic, person of unsound mind, or spendthrift, modern guardianship law focuses on medical and functional criteria. (Note 8). Today, the most common paradigm involves a two pronged inquiry: (1) Is there a disabling condition; and (2) A finding that the condition causes an inability to adequately manage personal and/or financial affairs. (Note 9). In addition, most states require a finding that the guardianship is necessary to protect the alleged ward, and that no less restrictive means of doing so is available. (Note 10).

One book suggests that there are six pillars for a capacity assessment: medical condition; cognition; everyday functioning; values and preferences; risk and level of supervision; and means to enhance capacity. (Note 11). The pillars feed a five step judicial determination of capacity consisting of screening the case; gathering information; conducting a hearing; making a determination and ensuring oversight. In making determinations, the book suggests that judges should categorize the alleged ward’s ability and offers three possibilities: (1) If minimal or no diminished capacity, use less restrictive alternatives; (2) If severely diminished capacities on all fronts, use plenary guardianship; and (3) If mixed strengths and weaknesses, use limited guardianship. (Note 12).

Careful examination of the circumstances in each case is particularly important because an individual’s sense of self-worth may be intertwined with independence. An elder’s “ability to exercise this control and to maintain their dignity often forms the basis for their self-esteem and their belief in their continuing viability as a person. Thus, the loss of status as an autonomous member of society can intensify any disability that an elderly person may have.” In re Groves, supra, at 328.

Uniform Guardianship and Protective Proceedings Act
The UGPPA provides that a limited or unlimited guardian may be appointed only upon a finding, by clear and convincing evidence that the respondent is an incapacitated person and that the respondent’s needs cannot be met by less restrictive means. The UGPPA defines an “incapacitated person” as “an individual who, for reasons other than being a minor, is unable to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance.” UGPPA § 5-102(4).

Georgia
“The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” O.C.G.A. § 29-4-1(a). The threshold inquiry for a conservatorship is similar. “The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.” O.C.G.A. § 29-5-1(a). This is the basic finding necessary for the appointment of a guardian or conservator. The focus is solely on decision-making capacity rather than on a diagnosis. Radford, supra, § 4-1. (Note 13).

In Georgia, a finding of criminal insanity or incompetence to stand trial does not trigger a presumption that guardianship is necessary. O.C.G.A. § 29-4-1(2). Similarly, a finding that an individual requires treatment for (1) alcohol, drug or substance abuse, (2) mental illness, or (3) mental retardation does not trigger a presumption that guardianship is necessary. Id. Professor Radford notes that “Patients with dementia, delirium, schizophrenia, bipolar affective disorder, and other psychiatric conditions may be capable of making responsible decisions.”Radford, supra, § 4-1, n.10. (Note 14).

A “Good Samaritan” argument, without more, is insufficient to support a guardianship. The court has no duty to appoint a guardian simply for convenience or to derive a benefit for the ward. In In re Roscoe, 242 Ga. App. 440 (2000), there was no abuse of discretion where the court refused to appoint a guardian for the purpose of allowing a child to gain health insurance through the petitioner’s health policy. “[T]here was no basis for the appointment of a guardian other than to obtain an isolated but desirable benefit for the child.”

Conversely, after a petition is filed, the focus is on the alleged ward’s condition, not the success or failure of others in providing support for the ward. If the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety, then a guardian should be appointed. “The inquiry focuses on the condition and best interest of the adult, not on whether the adult’s family to date has been able to act successfully on her behalf without a guardianship.” Cruver v. Mitchell, 289 Ga. App. 145 (2008). (Note 15).

Loss of executive function or judgment will support imposition of a conservatorship. In In re Cochran, 314 Ga. App. 188 (2012), the alleged ward, Ms. Cochran, appealed imposition of a conservatorship. Apparently, Cochran enjoyed participating in foreign lotteries (e.g., scams). Beginning in 2007, the Department of Human Services began receiving reports that Cochran and her husband had spent as much as $100,000 on various lotteries and sweepstakes. (Note 16). Family members sought and secured an emergency conservatorship to protect Cochran. However, on the day the emergency conservatorship expired, Cochran went to the bank to wire $52,000; ostensibly the wire was to pay taxes after receiving word that she won an alleged multi-million dollar lottery. The bank refused to authorize the wire, so Cochran went to a different branch and withdrew $52,000. The bank then notified the Department, which filed a second petition for emergency conservatorship. Subsequent to the Department’s involvement, Cochran refused to see her personal physician (citing embarrassment), but agreed to meet with a psychologist. The psychologist filed a report indicating that Cochran lacked capacity to make responsible decisions regarding management of her property. A court appointed social worker arrived at the same conclusion. A conservatorship was imposed and Cochran appealed. On appeal, the judgment was affirmed. Although the court agreed that evidence that Cochran played suspect lotteries, alone, would not support a guardianship (Note 17),there was evidence that she was a serial victim of scams and that she suffered from a cognitive deficit, which lead to significant financial losses. This evidence was sufficient to support the necessity of a conservator to protect Cochran’s assets.

Tennessee
“The appointment of conservators in Tennessee no longer hinges on a determination of incompetency. For the past ten years, conservatorship proceedings have focused on the capacity of the person for whom a conservator is sought. Conservators may now be appointed only for persons who are disabled. Tenn. Code Ann. § 34-1-101(7) defines a “disabled person” as any person eighteen (18) years of age or older determined by the court to be in need of partial or full supervision, protection and assistance by reason of mental illness, physical illness or injury, developmental disability, or other mental or physical incapacity.” In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011). (Note 18).

“As the law now stands, the threshold question in every conservatorship proceeding is whether the person for whom a conservator is sought is disabled or incapacitated. (Note 19). If the answer is no, the trial court cannot appoint a conservator. If, however, the answer is yes, the court must then determine whether the person is fully or partially incapacitated and whether the incapacity is temporary or permanent. The trial court must also determine, based on the nature of the incapacity, whether the disabled person requires full-time supervision, protection, or assistance or whether partial supervision, protection, or assistance will suffice. If the trial court determines that the disabled person requires any sort of supervision, protection or assistance, it must enter an order appointing a conservator and must specifically “enumerate the powers removed from the respondent and vested in the conservator.” Tenn. Code Ann. § 34-3-107(2). Any power not specifically vested in the conservator remains with the person for whom the conservator has been appointed.” In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011).

While it may excite the vigilance of the court, advanced age, by itself, does not provide grounds for appointed a conservator or limited guardian. In re Groves, supra at 331, n.32. (Note 20).

Evidence of extensive alcohol and drug abuse might support a conservatorship. In In re Hutcheson, 2009 Tenn. App. LEXIS 238 (April 13, 2009), a conservator was appointed for a 43 year old former investment advisor after the court heard of substance abuse leading to “manifestations of psychosis, which is, in fact, disorganization – – hallucinations, delusions, and disorganizations.” Opposing testimony was offered by an expert hired by the respondent. Unfortunately, the respondent took the stand as well and, apparently, his testimony tipped the scales in favor of a conservatorship.

Where the alleged ward has a complete lack of knowledge concerning his or her assets and liabilities, a conservatorship may be appropriate. In In re Conservatorship of Trout, 2009 Tenn. App. LEXIS 693 (October 15, 2009), an 83 year old ward appealed the imposition of a conservatorship. Although other evidence supported the trial court’s finding, the most compelling evidence was her lack of knowledge concerning assets and liabilities, including “no apparent understanding that she had $ 60,000 in credit card debt or the ramifications of taking on a $ 200,000 30-year mortgage.” In Trout, the court found the alleged ward’s lack of understanding was so beyond her ability that the decisions being made were obviously those of an individual who exerted dominion and control over her.

Dismissal
If the Court determines no guardian or conservator should be appointed, then the case is dismissed. “No guardian shall be appointed for an adult within two years after the denial on the merits of a petition for the appointment of a guardian for the adult unless the petitioner shows a significant change in the condition or circumstances of the adult.” O.C.G.A. § 29-4-1(d). See O.C.G.A. § 29-5-1(d) for conservators.

Who should be appointed as Guardian or Conservator?
A conservator occupies a fiduciary position of trust of the highest and most sacred character. Amsouth Bank v. Cunningham, 253 S.W.3d 636 (Tn. Ct. App. 2006). “To appoint a conservator under Tenn. Code Ann. § 34-3-103, the trial court must make two determinations: (1) what is in the best interest of the disabled person considering all relevant factors and (2) who, under the prioritized list, is the appropriate conservator. Crumley, 1997 Tenn. App. LEXIS 774, 1997 WL 691532, at *3.” In re Conservatorship of Carnahan, 2011 Tenn. App. 113 (2011). In Tennessee, the prioritized list is as follows: (1) The person or persons designated in a writing signed by the alleged disabled person (Note 21); (2) The spouse of the disabled person; (3) Any child of the disabled person; (4) Closest relative or relatives of the disabled person; and (5) Other person or persons. T.C.A. § 34-3-103. Ultimately, though, there is no right to serve as fiduciary; the Court names the fiduciary if one is appointed. T.C.A. § 34-3-107. If the court declines to appoint the individual nominated by the ward, good cause must be shown. T.C.A. § 34-6-104(b). The rule in Georgia is essentially the same. See Radford, supra, § 4-5 (Note 22). Of note, if the alleged ward is present, a Georgia court should consider any person suggested by the proposed ward. O.C.G.A. § 29-4-12(d)(6); § 29-5-12(d)(6). (Note 23).

“Persons do not attain the office of conservator by contract or family relationship.They are appointed to act in the best interests of the disabled adult person for whom they are partially or fully responsible in the discretion of the court. Although there is a statutory order of priority of persons the court is to consider when selecting a conservator, the order of priority is subject to the court’s determination of “what is in the best interests of the disabled person.” Amsouth Bank v. Cunningham, 253 S.W.3d 636 (Tn. Ct. App. 2006), citing Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn.1998) (citing Meloy v. Nashville Trust Co., 177 Tenn. 340, 149 S.W.2d 73 (1941)).

In Georgia, a guardian must be an individual, but a conservator may be any person. (Note 24). A guardian or conservator with a conflict of interest may not be appointed unless the Court finds that the conflict is insubstantial or that, despite the conflict, appointment of the nominated individual is in the ward’s best interests. O.C.G.A. § 29-4-2(c). (Note 25). In Tennessee, the code expressly finds that “no personal representative of an estate, any part of which is distributable to a disabled person, except a parent, spouse, child, grandchild, grandparent or sibling of the disabled person, shall be appointed the fiduciary for the disabled person until the personal representative has first settled its accounts as personal representative.” T.C.A. § 34-1-120.

The court’s decision making process for departing from the statutory preference list is demonstrated in In re Moses, 273 Ga. App. 501 (2005). There, competing petitions for guardianship were filed by Wyomia Moses’s children and her sister. (Note 26). The children, Caris and Joseph, argued that Caris should be appointed guardian and that Joseph should be appointed conservator. Wyomia’s sister, Shirley Smith, argued that neither child was fit to serve because they failed to provide for their mother, Wyomia did not trust them and alleged that they had conveyed Wyomia’s real property to themselves. There was an allegation that Joseph slapped Wyomia. At the hearing, Wyomia testified that she was afraid of her children and that she wanted her sister to serve as her guardian. A handwriting expert reviewed the deeds conveying Wyomia’s real property from her to her children and found that the signatures on the deeds were not Wyomia’s. The trial court found that Wyomia “is aware of her circumstances, can enthusiastically express opinions about her living arrangements and social preferences, and should be allowed to make certain decisions for herself.” A limited guardianship was imposed appointing the sister to provide medical care and make medical decisions. The county guardian was appointed as conservator because the court found it best to appoint a neutral professional. The children appealed, arguing that the court should have followed the statutory preferences listed in the code and that any expression of preference by Wyomia was void because she was found to be incompetent. On appeal, the court rejected the children’s argument and affirmed the decision below. Appointment of the county guardian was appropriate because the evidence showed the existence of an actual conflict of interest between Wyomia and her children. As for who should be guardian, the court affirmed the trial court’s finding that Wyomia was competent to make certain decisions, such as expressing a preference regarding who should be her guardian. (Note 27).

In Cruver v. Mitchell, 289 Ga. App. 145 (2008), the court refused to appoint petitioners, the daughters of Addie Bee Mitchell, as conservators; instead, the county conservator was appointed. The evidence at trial showed that the daughters removed their mother from the Medicaid program out of fear that her estate would be subject to an estate recovery claim. “At the hearing, the probate court and Mitchell’s court-appointed lawyer expressed concern about appellants’ opt-out decision, questioning whether the decision served Mitchell’s best interest and whether, without the guaranteed Medicaid payments, Mitchell would have enough money to meet her needs. Mitchell’s lawyer also queried whether appellants recognized the various tax consequences of their decision.” Other evidence showed that the daughters planned to sell the ward’s property to family members to generate income, but presented no evidence showing that such a decision was wise or that Mitchell would have sufficient future funds without Medicaid. The court also observed that the daughters, as heirs, had a conflict of interest. Under these circumstances, the court was justified in departing from the statutory preference list. (Note 28).

In In re Estate of Kaufmann, 327 Ga. App. 900 (2014), a ward filed a petition for restoration of his rights. The matter went to medication, where a settlement was reached agreeing the guardianship and conservatorship would continue, that both the current guardian and conservator would resign and the Court would appoint a new guardian and conservator. The settlement called for both the ward and the existing guardian (his son) to submit names to the guardian ad litem who would then make a recommendation to the probate court. After receiving the guardian ad litem’s report, the probate court appointed a new conservator but retained the existing guardian notwithstanding the settlement. The ward appealed, arguing the probate court erred by modifying the terms of the settlement agreement. The probate court indicated it had statutory requirements that trump the settlement agreement which, in this case, caused it to retain the current guardian. On appeal, the decision below was affirmed, citing O.C.G.A. § 29-4-3(b).

In Morris v. Knight, 1 So.3d 1236 (Fla. App. 2009), three competing petitions were filed for guardianship over 97 year old Estelle Barker. Two were filed by family members and one was filed by a neighbor. After considering the relative involvement of each in Barker’s life, the Court rejected the statutory preference in favor of family members and appointed Knight as guardian, Barker’s neighbor. On appeal, the court found there is a statutory preference in favor of family, but the inquiry does not end there. The statute does not mandate the appointment of a family member as guardian. The best interest of the ward trumps other considerations in the appointment of a guardian and Knight was best positioned to serve. (Note 29).

In DeNunzio v. Denunzio, 151 Conn. App. 403 (Conn. App. 2014), competing petitions for conservatorship were filed by the parents of a disabled adult. Although witnesses agreed that both parents wanted what was best for their child, expert testimony was allowed which included a doctor’s opinion that the father should be the conservator. Ordinarily, opinion evidence regarding the ultimate issue for the trier of fact is prohibited. However, in determining who should be the conservator “ the best interests of a conservatoree must always be a consideration and a guide in examining statutory factors.” In this case, the opinion of the pediatrician, who was familiar with the conservatee’s case, was helpful in addressing the child’s needs. The Court found, “[i]n light of [the pediatrician’s] history with this family, it cannot be reasonably disputed that she is intimately familiar not only with Douglas’ medical needs, but also with the ways in which the parties have responded to those needs over the years.” Thus, the following opinion regarding who should be conservator was admissible: “[Douglas] is very impressionable and the [plaintiff’s] repeated requests for testing and ongoing interventions concern her, and that she is of the opinion that the [plaintiff] is not the best person to be [Douglas’] conservator.” The mother also challenged admission of the guardian ad litem’s opinion that the father should be the conservator. In permitting the guardian ad litem’s opinion, the Court stated:

“[T]he function of a guardian ad litem is to make recommendations to the court as to the best interests of the party or parties which the guardian has been appointed to represent. A guardian ad litem could not discharge these duties unless the guardian was allowed to make a decision as to what the best interests of the represented party required and to communicate that decision to the court. In this case, the report of the guardian ad litem was thorough, logical and professional. The recommendations of the guardian [ad litem] were supported by his investigation and by the evidence presented to the Probate Court. The court finds that the Probate Court was justified in considering the opinion of the guardian ad litem in reaching its decision that [the defendant], rather than [the plaintiff], should be appointed as conservator of Douglas’ person and estate.”

Structure of the Guardianship or Conservatorship
In Tennessee, the Court has an affirmative duty to ascertain and impose the least restrictive alternatives upon the disabled person that are consistent with adequate protection of the disabled person and the disabled person’s property. T.C.A. § 34-1-127. Similarly, in Georgia, “all guardianships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.” O.C.G.A. § 29-4-1(f). (Note 30).

The practical import of this directive is that appointment of a guardian is simply the beginning. Once a finding is made, the court must determine, on a case by case basis, the extent of the ward’s functional ability. Even in dementia cases, the progression of dementia is gradual and a limited conservatorship may be appropriate as the alleged ward gradually loses the ability to perform activities of daily living. Further, where the ward put other measures in place, such as a power of attorney or advance directive, permitting continuation of those structures is likely appropriate absent a showing of abuse. (Note 31).

Core Standard 1.1 from the Third National Guardianship Summit: Standards of Excellence (October 2011) supports this concept by providing that guardians shall develop and implement plans for meeting the needs of the person and that the plan shall emphasis a “person-centered philosophy.” The phrase person centered planning process is defined as:

One which is led by the individual receiving services and (1) includes people chosen by the individual; (2) Provides necessary support to ensure that the individual has a meaningful role in directing the process; (3) Occurs at times and locations of convenience to the individual; (4) Reflects cultural considerations of the individual; (5) Includes strategies for solving conflict or disagreement within the process, including any conflict of interest concerns; (6) Offers choices to the individual regarding the services and supports they receive and from whom; (7) Includes a method for the individual to request updates to the plan as needed.

If the ward’s condition improves, then it may become necessary to convert a plenary guardianship into a limited guardianship. In In re Estate of Fallos, 386 Ill. App.3d 831 (2008), a ward filed a petition to terminate his guardianship. In 1984, Fallos was injured in a motor vehicle collision that left him partially paralyzed, semi-spastic and confined to a wheelchair. He also suffered from paralysis of the diaphragm, which made it difficult for him to speak or be understood. In 2005, Fallos fell, suffered a hip fracture and was not found for several days. A plenary guardianship was established following a hearing, with a supportive recommendation from the guardian ad litem. By 2006, Fallos sent correspondence to the court indicating that he had made progress communicating with handwriting and that the guardian was not doing a good job. Nonetheless, the status quo was maintained. By 2007, Fallos’s handwriting had further improved and there was an indication that the State would provide him with a voice device to improve communication. Fallos also volunteered to submit to a psychiatric evaluation. Fallos’s court appointed attorney filed a petition to terminate the guardianship. Although there was evidence that Fallos was mentally sharp, the guardian objected to termination of the guardianship because Fallos might fall again if left unattended at home. After considering the evidence, the trial court denied Fallos’ motion. When his motion to reconsider was denied, an appeal followed and the trial court’s decision was reversed. The standard in considering whether a plenary guardianship is appropriate is whether the ward’s capacity to perform the tasks necessary for the care of his person or the management of his estate has been demonstrated by clear and convincing evidence. … The ward’s capacity to perform the tasks necessary for the care of his person or management of his estate does not mean the ward must literally and physically have the capacity to care for himself, wash himself, feed himself, move himself, et cetera. Rather the phrase, capacity to perform the tasks necessary for the care of his person or management of his estate, includes the ward’s sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person. Because Fallos could make decisions and manage his care, the case was remanded with direction to modify the plenary guardianship.

Pre-existing Debt
In Conservatorship of Parker, 228 Cal. App. 4th 803 (Cal. Ct. App. 2014), the ward was involved in a real estate transaction prior to his incapacity. Parker, the ward, provided financing for a real estate development with his partner, Boothby, providing sweat equity. In 2004, Parker tried to carve Boothby out of the partnership, using a lawyer to redrafts the development agreement to exclude Boothby. In 2005, Boothby sued Parker and his attorney, taking a judgment for $325,000 in economic damages and $350,000 in punitive damages. After the tortious conduct was committed, but before the judgment was taken, a conservatorship was established for Parker. Post-judgment, the conservator defended Boothby’s attempt to collect, claiming that payment of the judgment would impair the conservator’s ability to provide for the ward’s necessities of life. The court of appeals affirmed the probate court’s order that the conservator nonetheless pay the judgment, plus interest. The debt arose when the tort was committed, not the date the judgment was taken. Therefore, it was a valid claim against the ward’s estate. “There is no claim or evidence that the conservators failed, neglected or refused to furnish suitable support to Parker, and we decline to speculate whether this may occur at some unknown time in the future. The only thing that is certain at this point is that Parker breached his fiduciary duty to Boothby in 2004, he incurred a debt to Boothby at that time, and the conservators must pay Parker’s pre-conservatorship debt to Boothby.”

Multi-State Cases
In Bogert v. Morrison, 972 So.2d 905 (Fla. App. 2007), competing petitions for guardianship and conservatorship were filed over 71 year old Joseph Morrison. Morrison resided in New Jersey with his long-time companion and girlfriend (Bogert) when, in February, 2006, he fell while on a tip to Reno, Nevada and became incapacitated. He returned to New Jersey, where he was cared for until his children removed him to Florida in April, 2006, without Bogert’s knowledge or consent. Bogert filed a petition for guardianship and conservatorship in New Jersey on April 25, 2006, prior to the time his children filed a similar petition in Florida. Although Bogert appeared in the Florida proceeding, on August 9th, she filed a motion to dismiss the Florida proceeding in light of a New Jersey court order finding that New Jersey had jurisdiction because Morrison was a New Jersey resident. The trial court denied Bogert’s motion and appointed Morrison’s daughter as his guardian and conservator. On appeal, the trial court’s decision was reversed– “in general, … the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the principle of priority.” Although the principal or priority is discretionary in multi-state proceedings, a trial court should stay proceedings when prior proceedings are pending in a court of another state unless there are special circumstances that would justify a denial of the stay.

Jurisdiction

In 2016, Georgia adopted the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act. O.C.G.A. § 29-11-1 et seq. The Act defines “Home state” as the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of a petition for a conservatorship order or the appointment of a guardian or, if none, the state in which the respondent was physically present, including any period of temporary absence, for at least six consecutive months ending within the six months prior to the filing of the petition. O.C.G.A. § 29-11-2(6). No further analysis is required if the respondent (proposed ward) was a resident of Georgia for at least six months prior to filing the Petition. When that is not the case, Probate Courts may communicate with courts in other states to secure records, testimony or other information to determine whether Georgia is the appropriate forum. In determining jurisdiction, the Court shall consider (1) The location of the respondent’s family and other persons required to be notified of the guardianship proceeding or conservatorship proceeding; (2) The length of time the respondent at any time was physically present in the state and the duration of any absence; (3) The location of the respondent’s property; (4) The extent to which the respondent has ties to the state such as voting registration, state or local tax return filing, vehicle registration, driver’s license, social relationship, and receipt of services;  and (5) The extent to which the respondent considers or, in the absence of an impairment of mental faculties, would consider himself or herself to have a significant connection with the state. O.C.G.A. § 29-11-10. The Act is the exclusive jurisdictional basis for a court to appoint a guardian or conservator. O.C.G.A. § 29-11-11. The requirements for jurisdiction appear in Section 29-11-12 and are as follows:

A court of this state has jurisdiction to appoint a guardian or issue a conservatorship order for a respondent if:

(1) This state is the respondent’s home state;

(2) On the date the petition is filed, this state is a significant-connection state and:

(A) The respondent does not have a home state or a court of the respondent’s home state has declined to exercise jurisdiction because this state is a more appropriate forum;  or

(B) The respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order:

(i) A petition for an appointment or order is not filed in the respondent’s home state;

(ii) An objection to the court’s jurisdiction is not filed by a person required to be notified of the proceeding;  and

(iii) The court in this state concludes that it is an appropriate forum under the factors set forth in Code Section 29-11-15;

(3) This state does not have jurisdiction under either paragraph (1) or (2) of this Code section, the respondent’s home state and all significant-connection states have declined to exercise jurisdiction because this state is the more appropriate forum, and jurisdiction in this state is consistent with the Constitutions of this state and the United States;  or

(4) The requirements for special jurisdiction under Code Section 29-11-13 are met.

Special jurisdiction for emergency proceedings is authorized in Section 29-11-13, but must be dismissed upon the request of respondent’s home state if the request is received prior to appointment of an emergency guardian or conservator.

Courts may decline jurisdiction even if the forum is the respondent’s home state under certain circumstances. In determining whether a particular state is the appropriate forum, Section 29-11-15  provides that the court shall consider all relevant factors, including:

(1) Any expressed preference of the respondent;

(2) Whether abuse, neglect, or exploitation of the respondent has occurred or is likely to occur and which state could best protect the respondent from the abuse, neglect, or exploitation;

(3) The length of time the respondent was physically present in or was a legal resident of this or another state;

(4) The distance of the respondent from the court in each state;

(5) The financial circumstances of the respondent’s estate;

(6) The nature and location of the evidence;

(7) The ability of the court in each state to decide the issue expeditiously and the procedures necessary to present evidence;

(8) The familiarity of the court of each state with the facts and issues in the proceeding;  and

(9) If an appointment were made, the court’s ability to monitor the conduct of the guardian or conservator.

Protective powers are vested in the court allowing it to stay a proceeding while a petition is filed in the appropriate jurisdiction. See O.C.G.A. § 29-11-16 through 29-11-18.

In Hetman v. Schwade, 317 S.W.3d 559 (Ark. 2009), a Pennsylvania guardianship was established in 2000, prior to the time Alexandra Vicari was moved to Arkansas. The Pennsylvania guardianship was terminated without an accounting on April 27, 2007. After that time, the Arkansas court ordered the guardian to file an accounting, including one for time periods relating to the Pennsylvania guardianship. That decision was reversed on appeal. The Arkansas court had no jurisdiction to inquire into the propriety of the Pennsylvania guardianship case. The lesson learned is to request an accounting prior to transfer of the guardianship case if an accounting is appropriate.

In In re Estate of Hanson, 357 Ga. App. 199, 848 S.E.2d 204 (2020), a probate court issued an order for a nontemporary guardianship and a conservatorship over non-Georgia property of Kevin Hanson, a Florida resident. The Court of Appeals, finding it was a case of first impression, held “that the probate court plainly erred in concluding that it had such jurisdiction. We therefore reverse and remand with direction.” In Hanson, Kevin Hanson lived in Miami with his life partner, Kimberly Babbitt and Kevin’s four children. While in Miami, he was injured. After his injury, Hanson was taken to the Shepherd Center where his parents filed a petition for guardianship. Babbitt was not notified of the action. The initial petition was an emergency petition, but Hanson’s parents later filed a petition to be appointed permanent co-guardians and co-conservators. When Babbitt learned of the Petition, she and the children filed a motion to intervene, which was denied. While arguing jurisdiction was in Florida, Babbitt filed her own Petition for Guardianship and Hanson’s children filed a caveat. Later, the probate court granted the petition of Hanson’s parents. “On the initial appeal, this Court held that the probate court failed to consider the factors necessary to establish that it had jurisdiction under the UAGCPJA; we therefore vacated the court’s decision and remanded the case for additional findings. Hanson, 353 Ga. App. at 62(1), 834 S.E.2d 615.” On remand, the Probate Court again found that it had jurisdiction. On the second appeal, the Court of Appeals initially denied the Hanson’s motion to dismiss Babbitt’s appeal. Although a motion to intervene is, by itself, appealable, she also became a party in the case when she filed her own petition for guardianship. The Court then went on to hold that the Probate Court lacked jurisdiciton. The Court of Appeals rejected reliance on O.C.G.A. §§ 29-4-10(a) and 29-5-10(a).

In enacting the UAGCPJA, the legislature made clear that Article 2 of that Act “provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a conservatorship order for an adult.” OCGA § 29-11-11. This language is clear and susceptible to only one meaning. Furthermore, OCGA §§ 29-4-10(a) and 29-5-10(a) pertain to the question of venue, not jurisdiction.

Although the Probate Court exercised jurisdiction based on an alleged significant connection with Georgia, it failed to satisfy the remaining provisions in Sectoin 29-11-12. Subparagraph (2)(A) provides for jurisdiction if “[o]n the date the petition is filed,” the forum state “is a significant connection state” and “[t]he respondent does not have a home state or a court of the respondent’s home state has declined to exercise jurisdiction because this state is a more appropriate forum.” “The probate court plainly erred by relying on this subparagraph because it is undisputed that Florida was Kevin’s home state and there is no evidence in the record that as of July 3, 2018, the date of the petition for permanent orders, a court in Florida had declined to exercise jurisdiction because Georgia was a more appropriate forum.” Further, subparagraph (2)(B) provides for jurisdiction if “[o]n the date the petition is filed,” the forum state “is a significant-connection state” and “[t]he respondent has a home state, a petition for an appointment or order is not pending in a court of that state or another significant-connection state, and, before the court makes the appointment or issues the order“: (i) A petition for an appointment or order is not filed in the respondent’s home state; (ii) An objection to the court’s jurisdiction is not filed by a person required to be notified of the proceeding; and (iii) The court in this state concludes that it is an appropriate forum under the factors set forth in Code Section 29-11-15. OCGA § 29-11-12(2)(B). These final three requirements are stated in the conjunctive, meaning that all three must be true to satisfy this subparagraph. However, this test also fell short because a petition was filed in Florida and an objection was filed in Georgia. The Court reversed the probate court’s final order granting a permanent guardianship over Kevin and conservatorship over Kevin’s property not located in Georgia.

Transfers from One State to Another

A uniform procedure for transferring guardianships and conservatorships appears at O.C.G.A. § 29-11-20 through 29-11-21. The process begins in the State where the guardianship or conservatorship was established by petitioning for leave to transfer the case to another state. Notice must be given to all persons who would be entitled to notice for the appointment of a guardian or conservator. The Court may hold a hearing on its own motion or at the request of any person required to be notified. If the court finds that the prospective state would accept the guardianship, the Court must issue an order provisionally granting the petition to transfer the case if:

(1) The incapacitated person is physically present in or is reasonably expected to move permanently to the other state;

(2) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the incapacitated person;  and

(3) Plans for care and services for the incapacitated person in the other state are reasonable and sufficient.

Similarly, the Court shall issue a provisional order to transfer a conservatorship if the court finds it would be accepted in the other state and the court finds:

(1) The protected person is physically present in or is reasonably expected to move permanently to the other state or the protected person has a significant connection to the other state considering the factors in Code Section 29-11-10 ;

(2) An objection to the transfer has not been made or, if an objection has been made, the objector has not established that the transfer would be contrary to the interests of the protected person;  and

(3) Adequate arrangements will be made for management of the protected person’s property.

After a provisional order is entered permitting transfer, the guardian or conservator must file a petition in the other state (or if coming from another state, in Georgia) requesting that the case be accepted. The petition must include a certified copy of the other state’s provisional order of transfer. Notice must be given to those entitled to notice and the Court in the receiving state may hold a hearing on its own motion or at the request of any person notified. The court shall issue an order provisionally granting the petition unless:

(1) An objection is made and the objector establishes that transfer of the proceeding would be contrary to the interests of the incapacitated person or protected person;  or

(2) The guardian or conservator is ineligible for appointment in this state.

A final order is issued confirming transfer and terminating the proceeding in this sate upon receipt of (1) A provisional order accepting the proceeding from the court to which the proceeding is to be transferred which is issued under provisions similar to Code Section 29-11-21 ;  and (2) The documents required to terminate a guardianship or conservatorship in this state. Similarly, the court in the receiving state shall issue a final order accepting the guardianship or conservatorship upon receipt of the transferring state’s final order. Within 90 days after the final order is issued in the receiving state, the Court shall determine whether the guardianship or conservatorship must be modified to conform to Georgia law. No findings regarding capacity or incapacity are required because the Court “shall recognize a guardianship order or conservatorship order from the other state, including the determination of the incapacitated person’s or protected person’s incapacity and the appointment of the guardian or conservator.”

Tennessee has adopted the Uniform Adult Guardianship and Protective Proceedings
Jurisdiction Act. See T.C.A. § 34-8-101 et seq. See also Uniform Guardianship and Protective Proceedings Jurisdiction Act.

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Notes:

  1. Listed with citation at https://web.archive.org/web/20120625194121/http://www.ncsc.org/sitecore/content/microsites/future-trends-2012/home/Better-Courts/1-7-Probate-DCM.aspx.
  2. https://web.archive.org/web/20130202063828/http://www.co.bibb.ga.us/ProbateCourt/Forms/QualificationsQuestionnaire.pdf.
  3. https://web.archive.org/web/20130202063752/http://www.co.bibb.ga.us/ProbateCourt/Forms/ConsentCriminalCheck.pdf.
  4. See Rules of Civil Procedure, Rule 24 (O.C.G.A. § 9-11-24). Any person shall be permitted to intervene when a statute confers an unconditional right to do so, or when the applicant claims an interest relating to the property or transaction which is the subject matter of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Permissive intervention is possible when a statute confers a conditional right to intervene, or when an applicant’s claim or defense and tha main action have a question of law or fact in common.
  5. In In re Hodgman, 269 Ga. App. 34 (2004), venue should have been in Fulton County, the county of the proposed ward’s residence, but was waived by all parties to permit venue in the county where the ward was found. See O.C.G.A. § 29-4-80(a) indicating the a guardianship may be removed to the county where the ward resides. In Sorrells v. Sorrells, 247 Ga. 9 (1981), the Court found “that under Art. VI, Sec. XIV, Par. VI of the Georgia Constitution (Code Ann. § 2-4306), where a person files an application for the appointment of a guardian of an allegedly mentally incompetent state resident, the allegedly mentally incompetent person is entitled to have the application for guardianship heard in the probate court of the county of his or her residence.” One’s legal residence for the purpose of being sued in this state is generally the same county as his or her domicile. There must be a concurrence of actual residence and the intention to remain, to acquire a domicile. Merely finding someone in a county is not determinative because a person who is mentally incompetent and who moves from one place to another may lack the mental capacity to change his or her domicile.
  6. Where there is no jurisdiction, the conservatorship is void ab initio. Gross v. Rell, 304 Conn. 234 (Conn. 2012). In Gross, a New York resident was subjected to a conservatorship while visiting in Connecticut. He was admitted to a hospital for medical treatment and, while there, a hospital employee filed a petition for conservatorship. He was then placed in a nursing home where he was threatened and assaulted by his roommate. Defendants in the subsequent action for damages alleged a quasi-judicial remedy defense. In finding that the court appointed attorney’s quasi-judicial defense is limited to situations where he is carrying out a court order, one judge stated the attorney’s conclusion that there was no basis for objecting to the involuntary conservatorship “completely blows my mind.” Ultimately a writ of habeas corpus was granted, terminating the conservatorship, before the action for damages was filed.
  7. Assessment of Older Adults with Diminished Capacity: A Handbook For Lawyers, p. 7 (ABA/APA 2005); see also Langston v. Allen, 268 Ga. 733 (1997) (“Mental or physical impairment is never presumed.”); In re Groves, supra, at 329 (“it is well-settled that the law presumes that adult persons are sane, rather than insane, and capable, rather than incapable.”). “No adult shall be presumed to be in need of a guardian unless adjudicated to be in need of a guardian….” O.C.G.A. § 29-4-1(e).
  8. Assessment of Older Adults with Diminished Capacity, supra, at 7. See also J. Karlawish, Measuring Decision-Making Capacity in Cognitively Impaired Individuals, 16 Neurosignals 91, 92 (2008) (the essential characteristic is that someone lacking capacity, whether the judgment is medical or legal, “can no longer choose for himself”), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2717553/.
  9. Id. See also In re Groves, supra, at 331 (“the pivotal inquiry involves not merely the diagnosis but also the effect that the illness, injury, or condition has had on the capacity of the person for whom a conservatorship is sought.”).
  10. Cashmore notes that some scholars believe Olmstead v. L.C. ex rel Zimring, 527 U.S. 581 (1999), requires no guardianship at all. “Instead, they advocate for supported decision making, where trusted family members or other providers make suggestions to a person with cognitive limitations rather than becoming the guardian for that person. The individual retains the ability to make the final decision.” See Cashmore, 55 B.C.L. Rev. , supra, at 1235. This is a nonsensical interpretation of Olmstead, at least when it concerns property management. It is akin to negotiating with a child regarding whether its property play in a busy street. The premise of a guardianship, under modern standards, is that decision-making capacity is impaired or lost. Third parties, such as banks, investment brokers, purchasers of real estate, business partners and others must have someone with authority to act, who can execute contracts or relieve them of liability when property is distributed and that cannot be given by an individual without capacity.
  11. American Bar Association, American Psychological Assoc., and National College of Probate Judges, Judicial Determination of Capacity of Older Adults in Guardianship Proceedings, available at https://www.apa.org/pi/aging/resources/guides/judges-diminished.pdf.
  12. Id. One writer suggests developing a better working relationship between the legal and medical communities to ensure judges get the most useful information, noting that medical professionals completing reports often do not understand medical-legal relationships. R. Denton, Wings: The Challenges of Submitting Competent Medical Evidence of Incapacity in Guardianship Proceedings, 27 Utah Bar. J. 44 (May/June 2014).
  13. The most common model in determining capacity measures an individual’s abilities in understanding, appreciation, choice and reasoning. Karlawish, supra, at 93. See also P. Moberg & K. Kniele, Evaluation of Competency: Ethical Considerations for Neuropsychologists, 13 Applied Neuropsychology 101, 103 (2006). There is, no single measure the may act as a capacitor. “There appears to be a shared belief that decision-making capacity is a multidimensional construct reliant on a combination of intact cognitive abilities including attention, orientation, memory, general intellectual functioning, problem solving and abstract reasoning.” Id., at 104.
  14. “Capacity usually is task-specific rather than a general construct. The existence of physical or mental illness per se does not mean that a patient lacks capacity. Rather, capacity is determined by whether an individual has specific abilities, regardless of diagnosis.” S. Soliman, Evaluating older adults’s capacity and need for guardianship, 11 Current Psychiatry 39, 40 (April 2012).
  15. In the absence of a power of attorney and/or advance directive, the court’s holding is likely appropriate. However, if those documents exist, then it is doubtful that a guardianship is “necessary” where the caregiver support was successful.
  16. Testimony at trial indicated that Cochran may have spent between $600,000 to $700,000 over a 6 or 7 year period.
  17. “[A] person of perfectly sound mind, capable of understanding that the lotteries might be a fraud, nevertheless might choose to play the lotteries as escapist fantasy and fun.” However, the cumulative evidence showed that Cochran was incapable of reasoning that the lotteries were likely scams. The psychologist who interviewed Cochran testified that she had a loss of cognitive process of judgment and consequences; Cochran concluded one lottery was not a scam because “he called.” In another case, Cochran gave out her bank account information after allegedly winning a $57 million lottery, but she could not recall who she gave the information to or the name of the lottery. At trial, she testified that she was supposed to meet a man from Jamaica after the hearing who was delivering a lottery check and two cars. When asked if she thought the man was truthful, her response was “well, you can never tell.” Value judgments are addressed in Moberg & Kniele, supra, at 108, where they indicate that a patient’s decision to donate his or her life savings to “Save the Whales” may appear ill-advised, but if the patient demonstrates an understanding of the cost: benefit analysis, then an evaluator must respect the patient’s wish.
  18. Prior to 1993, a judicial determination of incompetence was required. See also Thompson v. Tennessee, 134 S.W.3d 168 (2004), a criminal case, where the court observed that disability, rather than incompetence was the standard. In that case, the court recounted that Thompson’s conservatorship had been terminated several months earlier because the court found it was no longer necessary.
  19. Although the term “disability” is defined by statute, the term “incapacitated” is not. In In re Conservatorship of Groves, 109 S.W.3d 317 (2003), the court noted that capacity is situational and contextual. It is not an abstract, all or nothing proposition. In involves a person’s actual ability to engage in a particular activity. A person may be incapacitated with regard to one task or activity while retaining capacity in other areas because the skills necessary in one situation may differ from those required in another. Capacity is a fluid concept and may change over time or with the situation.
  20. In In re Guardianship and conservatorship of Steelman, 846 N.W. 2d 529 (Iowa C. App. 2014), the husband of a ward challenged the sufficiency of the evidence in establishing a voluntary guardianship for his wife. The Court of Appeals affirmed, finding that Shirley (the ward) “demonstrated confusion as to her age and has numerous, occasionally contradictory, powers of attorney, she was unable to advise the court of her medical conditions even though she is prescribed medication. On at least one occasion, significant confusion existed as to who was in charge of her affairs and had the power to act in her best interests.”
  21. O.C.G.A. § 29-4-3(e). In Koshenina v. Buvens, 130 So.3d 276 (Fla. App. 2014), it was error to fail to determine whether the ward was competent at the time she made a preneed designation of her husband as guardian. The ward’s siblings had petitioned to become guardian after observing injuries the ward sustained while in a 24/7 facility. Her husband then produced the preneed designation, which the court failed to rule upon. Failing to determine whether the ward was competent at the time was error requiring remand. There is a rebuttable presumption the ward was competent at the time. If so, then the standard in appointing a guardian was not what was in the ward’s best interests; rather, the standard is whether appointment of the selected guardian is contrary to the best interests of the ward. The standard is different because the ward’s preneed selection of a guardian is entitled to deference.
  22. “No one person is entitled to serve as the guardian of an adult. The court must choose as guardian of an adult that person who best serves the adult’s interest. The revised Code includes a preference list that the court may consider in making the selection but also makes it clear that the court may disregard someone who has preference on that list in favor of someone who has a lower preference or no preference.” Radford, supra, § 4-5. In some states, there is not even a right to preference. See Salter v. Johnston, 98 So.3d 1130 (Miss. Ct. App. 2012) (Mississippi laws concerning conservatorships give no preference to an individual’s next of kin).
  23. Cashmore argues that challenges arise when an individual is incapable of making his or her own decisions, but does not have a close friend or relative who can provide informal support or take on the role of guardian. In those cases, a public guardian should serve. See Cashmore, Guarding the Golden Years, supra, at 1221. In In re Guardianship & Conservatorship of Pates, 823 N.W. 2d 881 (Minn. Ct. App. 2012) the ward testified at trial that she preferred one son, Abraham, as her conservator. Another son, David, was appointed instead. The trial court’s decision to reject the ward’s request was affirmed with the court of appeals finding “that Abraham Younkin’s appointment is not in Pate’s best interests and that David Younkin is the most suitable and qualified person to serve as Pates’ conservator is supported by the record and is not clearly erroneous.”
  24. Compare O.C.G.A. § 29-4-2(a) with O.C.G.A. § 29-5-2. An exception exists for Public Guardians and for the Department of Human Resources. Fleming and Morgan argue the “power of the [financial] fiduciary is significant – meaning the court should give careful scrutiny to the qualifications of the proposed fiduciary.” R. Fleming and R. Morgan, Standards for Financial Decision-Making: Legal, Ethical, and Practical Issues, 2012 Utah L. Rev. 1275 (2012). This article appears to be the basis for a self-study course offered by the National Guardianship Association.
  25. A guardian must promptly disclose a conflict of interest. O.C.G.A. § 29-4-24. In Ray v. Stewart, 287 Ga. 789 (2010), appointment of a guardian ad litem was sufficient to resolve potential conflicts where the same person served as conservator and as executrix of the ward’s estate. In In re Estate of McKitrick, 326 Ga. App. 702 (2014), the Court upheld a probate court’s finding that a conflict was insubstantial and there was no evidence of harm to the ward where the appeal failed to include a transcript. Without a transcript, the appellate court must presume the evidence was as the probate court found it.
  26. “Competing conservatorship petitions, while infrequent, are entirely consistent with the conservatorship statutes. It should be expected that intra-family disagreements can arise regarding who should act as conservator for an impaired family member.” In re Groves, supra, 345.
  27. In Johnson v. Mitchell, 2013 Ark. App. 498 (Ark. Ct. App. 2013), the Court appointed a granddaughter, over the objection of the ward’s daughter, after finding that the granddaughter had been raised by the ward, had participated in her care, had lived with the ward, had been named as agent under a power of attorney, health care directive and as representative of the ward’s estate. These appointments were made while the ward had capacity. The court also noted that the ward was angry with the daughter prior to incapacity because the daughter did not attend the funeral of the ward’s husband and the daughter tried to force the ward to move to Florida. The trial court was affirmed.
  28. In In re Boyd, 99 A.3d 226 (Del. 2014), the Court removed the ward’s son as attorney-in-fact and appointed a third-party conservator where the attorney-in-fact failed to cooperate with a Medicaid application. The son arranged for his mother’s Social Security to be paid to the nursing home, but refused to cooperate in paying her pension, keeping the pension funds for himself. The Court found that as attorney-in-fact he had a duty of loyalty to his mother and that it was in her best interests to see that she paid for her medical care. Thus, the court did not err in finding that the son breached his fiduciary duty, or in appointing the third-party conservator.
  29. The family members who petitioned for conservatorship were cousins, who were apparently substantially uninvolved in Barker’s life prior to filing the guardianship petition. Knight, on the other hand “ has known Barker since he was a child visiting his grandmother who lived across the street from Barker in the 1960s. Knight is a former U.S. Marine and retired sanitation worker for the City of West Palm Beach. …. Knight began stopping by to bring Barker coffee and food, to visit with her, and to wash her clothes and clean her house. When Barker’s doctor made the decision to place Barker in a nursing home, Knight continued to visit her there six days a week for two hours each day. Knight testified that he intends to continue visiting Barker, washing her clothes, and bringing her snacks whether he is appointed guardian or not.” Similarly, appointment of a third-party guardian was affirmed in In re Holloway, 251 Ga. App. 892 (2001). There the probate court ruled that none of the ward’s children were qualified to act as her guardian “because each has in some way recently acted in such a way as to call into question whether his or her judgment as to [the ward] would be clouded by or influenced by his or her disdain for or mistrust of one or more siblings.”
  30. “In general, the court should find that no less intrusive alternative, including a limited guardianship, is appropriate before selecting and appointing a plenary guardian.” Commentary to NCPJ Standard 3.3.2. In Searle v. Bent, 137 So.3d 1028 (Fla. App. 2013), a daughter filed a petition for guardianship, alleging her mother was the victim of financial abuse. She filed a verified affidavit calling into question a power of attorney and other estate planning documents. The ward appealed, contending the estate planning documents provided a less restrictive alternative than a guardianship. However, because the validity of those documents was called into question (without the necessity of a definitive ruling on their validity), the court did not err in finding the documents did not establish a less restrictive alternative. One writer described the traditional (old) guardianship model as “binary.” See K. Glen, Changing Paradigms: Mental Capacity, Legal Capacity, Guardianship and Beyond, 44. Colum. Human Rights L. Rev. 93 (2012). Glen notes that incapacity was viewed as a defect that deprived an individual of the ability, and consequently the legal right, to make choices. Id., at 94. The modern model, generally in use today, is a functional model and views capacity as a shifting network of values and circumstances. The new paradigm leads to tailored or limited guardianships.
  31. In Tennessee, a conservatorship does not automatically terminate a power of attorney, although the conservator has the same right to revoke the power that was held by the ward. T.C.A. § 34-6-104(a).
  32. The procedure for accepting a foreign guardianship formerly appeared at O.C.G.A. § 29-4-80 et seq. (See Note 34 regarding 2016 changes to the law).
  33. In Sears v. Hampton, 143 So.3d 151 (2013), the Alabama Supreme Court found that the transfer procedure makes it possible to transfer a guardianship or conservatorship without re-litigating the issue of incapacity or the appropriateness of the guardian. Until the transfer is accepted, under the Alabama statute the receiving court must accept the transferred guardianship before considering other issues such as whether a different guardian should be appointed. There is a 90 day period after the guardianship is accepted during which the court can consider whether a modification is appropriate. An attempt to modify the guardianship prior to acceptance, especially if the guardian or conservator is changed, “can have grave implications, because law enforcement would be unable to determine which letters of guardianship were correct for the protected person’s residence, and financial institutions would not be able to determine which letters of conservatorship to honor for financial transactions.”
  34. The procedure for transferring a Georgia guardianship was substantially similar and appeared at O.C.G.A. § 29-4-90 et seq. However, both the guardianship and conservatorship provisions were repealed in 2016 this section was repealed in 2016 in Ga. L. 2016, p. 563.  The new provisions, which appear at 29-11-1 et seq. are known as the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act.

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