Guardianship Book Chapter 6: Post Appointment “Back-End” Issues

Backend procedures include posting of bond and monitoring the guardian and conservator by requiring the filing of reports. (Note 1). For example, a Tennessee fiduciary who manages property must file a sworn inventory within sixty (60) days following appointment containing a list of the property of the minor or disabled person, together with the approximate fair market value of each property and a list of the source, amount and frequency of each item of income, pension, social security benefit or other revenue. T.C.A. § 34-1-110. Annual accountings are due within sixty (60) of each anniversary of the appointment. T.C.A. § 34-1-111. Courts may remove fiduciaries for mismanaging conservatorship estates. T.C.A. § 34-1-123.

Backend issues also include decision-making for the ward. Unless otherwise specified, a Final Order appointing a guardian removes the ward’s right to: (1) contract marriage; (2) make, modify or terminate contracts (Note 2); (3) consent to medical treatment; (4) establish a residence or dwelling place; (5) change domicile; revoke a revocable trust established by the ward’ and (7) bring (Note 3) or defend any action at law or equity, except an action relating to the guardianship. O.C.G.A. § 29-4-21(a). (Note 4). The Final Order vests these powers in the guardian. O.C.G.A. § 29-4-23, although some actions require court approval (e.g., changing domicile).

In making decisions, “a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare. A guardian shall, to the extent feasible, encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs. To the extent known, a guardian, in making decisions, shall consider the expressed desires and personal values of the ward. A guardian shall at all times act as a fiduciary in the ward’s best interest and exercise reasonable care, diligence, and prudence.” O.C.G.A. § 29-4-22(a).

Modification
The court may modify the guardianship by adjusting the duties or powers of the guardian, as defined in Code Sections 29-4-22 and 29-4-23, or the powers of the ward (Note 5), as defined in Code Sections 29-4-20 and 29-4-21, or by making other appropriate adjustments to reflect the extent of the current capacity of the ward or other circumstances of the guardianship. O.C.G.A. § 29-4-41(a). Clear and convincing evidence must support any modification further increasing the guardian’s powers or restricting the ward’s rights. A preponderance of the evidence is sufficient to reduce a guardian’s powers or restore to the ward. O.C.G.A. § 29-4-41(d). (Note 6). Modifications must be in the ward’s best interests. O.C.G.A. § 29-4-41(c).

In Amsouth Bank v. Cunningham, 253 S.W.3d 636 (TN Ct. App. 2006), the Court stated:

The authority, rights and responsibilities of a conservator are not independent of the court. “Conservators act as the court’s agent and are under the court’s supervision.” Clayton, 914 S.W.2d at 90. The courts appointing conservators “retain continuing control over guardians and conservators because the persons who accept these appointments become `quasi-officials’ 643*643 of the court appointing them.” Clayton, 914 S.W.2d at 92 (citing Logan v. Graper, 155 Tenn. 565, 4 S.W.2d 955, 956 (1927)).

Following a conservator’s appointment, the court may discharge a conservator or modify the duties and authority of the conservator if the court determines the conservator has failed to perform its duties and obligations, or if the court determines the conservator has failed to act in the ward’s best interest so as to warrant modification. Tenn.Code Ann. § 34-3-108(a). Because a conservator is in a sense the agent through whom the probate court manages the affairs of a ward, the right to choose its representative is important to the tribunal. Monteverde v. Christie, 23 Tenn.App. 514, 134 S.W.2d 905, 910 (1939).

Use (and misuse) of Funds
The conservator is bound to use funds for the benefit of the ward and may be removed for misuse or mismanagement. (Note 7). Further, a transaction favoring a conservator at the ward’s expense may be set aside. Similarly, a conservator may be estopped from claiming a survivorship interest in property after accepting the office. In Suntrust Bank, Middle Ga., N.A. v. Harper, 250 Ga. App. 300 (2001), the court held that a guardian was estopped from claiming an interest in a CD due to a conflict of interest. “The law will not permit a guardian to act in such a way that his own personal interest may come in conflict with the interest of his ward with respect to the estate of the latter in his charge. A guardian owes a duty of undivided loyalty to his ward and must not place himself in a position where his own personal interests conflict or may conflict with the interests of his ward. The purpose of this loyalty rule is to ensure that a ward receives the unbiased and uninfluenced judgment of his guardian and to eliminate even a hint of suspicion as to the guardian’s actions. Since this loyalty rule is a preventative measure, it is not necessary that the guardian shall have gained from the transaction, in order to find that he is disloyal. If the dealing presented a conflict of interest and consequent temptation to the guardian, equity will provide a remedy at the option of the ward or his estate regardless of gain or loss to the guardian.” See also Moore v. Self, 222 Ga. App. 71 (1996) (if Ms. Self intended to claim title to the jointly held accounts and real property as the survivor after her mother’s death, she should not have applied for and accepted the [conservatorship]).

Evidence that funds might be used for a purpose other than the ward’s benefit will also justify refusal to appoint a petitioner as conservator. See Cruver v. Mitchell, 289 Ga. App. 145 (2008).

The case of Stalker v. Pierce, 953 N.E.2d 1094 (Ind. App. 2011), illustrates a guardian’s potential liability for imposing her own values on the ward in disposing of property. Pierce, the guardian, disapproved of Stalker’s (her ward’s) living conditions. She considered the condition of his home to be a threat to his well-being. She required him to move out of his home, even though it was not condemned, so it could be rehabilitated. A hearing occurred in 2006 where it was reported that Stalker was making progress toward rehabilitating his home. One week later, without court approval, Pierce had the home demolished. Stalker was not given prior notice. Pierce then sought leave to sell the vacant property. Her petition was approved and the property was sold for $37,500. Pierce then proposed spending down the proceeds because Stalker was on Medicaid and food stamps. Two year after Stalker’s home was demolished, Pierce filed a petition for leave to resign as guardian. (Note 8). Stalker’s brother and Mental Health of America were appointed as successor guardians. When Pierce filed a final accounting, it was approved without hearing. Stalker objected, alleging that Pierce breached her fiduciary duty. The court refused to award a judgment against Pierce and an appeal followed. The court found that Pierce owed Stalker a duty to protect and preserve his property and a duty of loyalty; both duties were breached. Pierce also violated Stalker’s due process rights by having the home demolished without giving him notice and an opportunity to object. The court of appeals found Pierce liable to Stalker for damages due to her breach and her violation of Stalker’s due process rights. The case was remanded for a determination of damages.

An absconding guardian or fiduciary may be cited to appear before the judge relative to the performance of his or her duties or any other matter related to the probate court pertaining to such person. O.C.G.A. § 15-9-35.

Retention of assets owned by the ward prior to imposing a conservatorship, without more, is not grounds for alleging abuse. “A conservator may retain the property received by the conservator on the creation of the conservatorship, including, in the case of a corporate fiduciary, stock or other securities of its own issue, even though the property may not otherwise be a legal investment and shall not be liable for the retention, except for gross neglect.” O.C.G.A. § 29-5-31(a). Investments consistent with O.C.G.A. § 29-5-32 are authorized and, when that code section is followed, a conservator is not liable for those investments except in cases of gross neglect. O.C.G.A. § 29-5-32. “In making investments and in acquiring and retaining those investments and managing property of the ward, the conservator shall exercise the judgment and care, under the circumstances then prevailing, that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the account. In making such investment decisions, a conservator may consider the general economic conditions, the anticipated tax consequences of the investments, the anticipated duration of the account, and the needs of the ward and those entitled to support from the ward.” O.C.G.A. § 29-5-34(a). Within these guidelines, with court approval, the conservator may make any investment. O.C.G.A. § 29-5-34(b).

Recovering Property
In Groves, supra, the Court observed that an action to recover property should be brought after the conservatorship is established. There are at least two reasons why this is so. First, the action becomes unnecessarily confused if a claim for recovery of property is included when considering the initial petition. Second, the court acquires jurisdiction of the ward’s property after making a finding that a conservatorship is warranted.

After a conservator is appointed, the ward has no power to convey property and any attempt to do so is void. Beavers v. Weatherly, 250 Ga. 546 (1983). In Beavers, the ward executed quitclaim deeds to a guardian (who was later removed for failing to file returns). The guardian then conveyed the property to a purchaser. The subsequent guardian sought to cancel the deeds. In affirming the trial court’s decision to cancel the deeds, the court held: “After a person has been adjudicated incompetent to the extent that he is incapable of managing his estate and the affairs of such person are vested in a guardian, the power of such person to contract is entirely gone. Any contract made by such a person when his affairs are in the hands of a guardian is not merely voidable, but absolutely void. Such is the case in this instance, and the subsequent conveyance of the same real estate to a third party cannot validate the void deed.”

After a conservator is appointed, the conservator may bring suit to set aside a deed on the ground that the deed was executed by the guardian’s ward while the ward was incompetent. Loftis v. Johnson, 249 Ga. 794 (1982). A conservator may also bring an action to set aside a suspicious transaction, particularly one involving a confidential relationship. In re Groves, at 351-354.

In In re McCool, 267 Ga. App. 445 (2004), competing petitions were filed to impose a guardianship and conservatorship for Kathleen McCool. The petition of Deborah Graham, Kathleen’s granddaughter sought to have herself appointed as emergency and permanent guardian and conservatorship. Kathleen’s daughter, Betty Tolbert, objected to Graham’s petition, contending that Graham had transferred and depleted Kathleen’s assets. During a hearing, Graham admitted that she used $100,000 of Kathleen’s funds to purchase an annuity (taking a commission), and that other funds were moved into Graham’s name to qualify Kathleen for Medicaid. Graham did not deny that the funds belonged to Kathleen; despite her attempt at home-made Medicaid planning, at least $353,000 in assets were listed on Graham’s petition as belonging to Kathleen. Following the hearing, the Probate Court ordered Graham to “turn over every penny of Ms. McCool’s estate” (which apparently amounted to $454,000) to the county administrator who was appointed conservator. Graham refused and a contempt citation was entered. Following a hearing on the contempt citation, the court ordered Graham to turn over the funds within 30 days or face incarceration. On appeal, the court’s ability to incarcerate Graham was reversed (because the order was indefinite as to the amount of funds to be returned and because of the length of the incarceration), but the order to return Kathleen’s funds was affirmed. The end result, which is similar to Groves, is that the Probate Court acquires jurisdiction over the ward’s funds upon establishment of the conservatorship and has authority to order them returned. (Note 9).

Accountings
Each year, within 60 days of the anniversary date of qualification, every conservator must file a verified return consisting of a statement of receipts and expenditures from the preceding year. O.C.G.A. § 29-5-60(a). The conservator must also file an updated management plan. (Note 10). An interested party may object to the accounting or the Court, on its own motion, can require original documents that support the return. If no objection is filed within 30 days after the return is filed, then the Court shall record the return within 60 days after its filing. The recorded return is prima-facie evidence of its correctness. O.C.G.A. § 29-5-60(c). If there is an objection to the return, or if the Court determines that the conservator may have wasted property of the ward, the court shall hold a hearing or take other action as the court deems appropriate. Id.If the Court finds that the conservator is liable to the ward, the court shall enter a judgment against the conservator and any surety in the amount of such liability. O.C.G.A. § 29-5-63. (Note 11). See K. Sarayloo, Insufficient Care: The Failure of Tennessee Conservatorship Statutes to Account for Future Interests in Low Asset Cases, 57 Tenn. B. J. 32 (2021) (discussing accounting and other reporting requirements as a way of protecting wards from unscrupulous conservators).

Removal of Guardian or Conservator
A guardian or conservator may be removed if the court finds that he or she is not acting in the ward’s best interests. (Note 12). In re Longino, 281 Ga. App. 599, 636 S.E.2d 683 (2006), cert. denied, 2007 Ga. LEXIS 92 (Ga. 2007). In Longino, the ward’s son was serving as conservator. Following his appointment, he apparently had a disagreement with Smith Barney over its handling of a trust which held approximately $2,000,000 in assets. In an attempt to revoke the trust, the conservator filed papers with the court which included “a “Petition to Invalidate Documents,” an “Agreed Order” to be entered by the court, and an attached “Agreement” signed by all three of the ward’s children including Mr. Longino.” After reviewing the papers, the court cited Mr. Longino to appear and show why he should not be removed as conservator. “The court considered evidence that, as part of his efforts to void the trust or move the trust assets from Smith Barney to another financial management company, Mr. Longino used or intended to use his conservatorship authority to place himself in the position of sole trustee of the trust. His conduct placed Mr. Longino in a position adverse to his service as conservator; in addition, other conduct caused the court to find that he was not acting in the ward’s best interest. Based on these findings, Mr. Longino’s letters of conservatorship were revoked and the decision was affirmed on appeal. (Note 13).

In In re Estate of Gladstone, 341 Ga. App. 72 (2017), Emanuel Gladstone was appointed conservator for his wife. The Conservatorship was established due to an expected inheritance. Gladstone was bonded for $430,000, but failed to file an asset management plan that was agreeable to the court appointed attorney or the court. Meanwhile, he reported the ward’s monthly income was $809 with monthly expenses of $10,513. After continuing delays in providing documentation and an asset management plan, the probate court suspended Gladstone and appointed a temporary substitute conservator. The substitute conservator found that Gladstone had paid himself approximately $80,000, ostensibly for caregiving. Following notice and a hearing, the probate court found the total amount Gladstone removed from the estate was $167,000. The court also sanctioned Gladstone an additional $150,000 for breach of fiduciary duty (on appeal, termed punitive damages). Judgment was rendered against both Gladstone and the surety and both appealed. On appeal, the judgment was affirmed as to both Gladstone and the surety. Notice was sufficient, and the surety was liable under the terms of its bond.

In Amsouth Bank v. Cunningham, 253 S.W.3d 636 (TN Ct. App. 2006), the Court held that Mrs. Cunningham was entitled to an evidentiary hearing on her petition to remove AmSouth Bank due to an alleged conflict of interest. There, a veteran sued the VA for malpractice. The VA had retained AmSouth to act as conservator in other cases and did so in Cunningham because Mrs. Cunningham had not filed appropriate returns showing how she used funds the VA paid the ward. However, when AmSouth sough to take over the malpractice litigation, the conflict of interest was alleged. The Court stated:

even in conservatorship matters, interested parties who file petitions and demand hearings are generally entitled to their so-called “day in court” unless the matter is moot, frivolous, barred by the doctrine of res judicata, or as in matters of summary judgment, the material facts are not disputed or a party is entitled to relief as a matter of law, in which event an evidentiary hearing may not be necessary.

The record before us is somewhat scant and inconsistent as it concerns the extent of the April hearing at issue. The best record of what occurred is reflected in the May 10, 2005 order. That order indicates a hearing was conducted regarding AmSouth’s petition (there is no reference to Mrs. Cunningham’s response to AmSouth’s petition or to her petition), that counsel for Mrs. Cunningham was present, and that counsel for AmSouth was not present but participated by phone. The order makes no reference to witnesses testifying. Nevertheless, it is doubtful an evidentiary hearing occurred because AmSouth’s counsel was not present in the courtroom, and the notices of depositions of and subpoenas for its employees were quashed prior to the hearing.

Based upon the modest evidentiary record before us, we are unable to conclude that Mrs. Cunningham is not entitled to a hearing on her petition to remove AmSouth Bank as a conservator and/or to divest the bank of its control over the ward’s federal litigation. We, therefore, remand the matter to the probate court for further proceedings consistent with this opinion to consider, among other things the probate court deems appropriate, whether the bank and/or Mrs. Cunningham should continue to serve as co-conservators, whether the bank should retain exclusive control over the federal litigation, or whether another conservator should be appointed to succeed the bank and/or Mrs. Cunningham.

Do You Report Your Client?
What happens if you represent Mr. Jones in filing a petition for conservatorship and he spends funds in an unauthorized manner? (Note 14). Can you report him? The answer to this question requires analysis of Rules 1.2, 1.3, 1.4, 1.6, 1.7, 1.16, 2.1, 3.3 and 4.1. (Note 15). Essentially, the lawyer cannot assist a client, or provide advice to a client, that would further unlawful conduct. While a lawyer has a duty of confidentiality, a lawyer also has a duty to be truthful in dealing with others and with the court. The lawyer cannot assist in preparing a deceptive report to the court. (Note 16). At a minimum, the lawyer may need to consider withdrawing from the representation if Mr. Jones persists in using funds in an unauthorized manner. NAELA Aspirational Standard B.6 indicates that the attorney may have a duty to report a fiduciary who acts contrary to the principal’s interests. (Note 17).

Changing the Ward’s Residence
In Bivins v. Rogers, 147 So.3d 549 (Fla. App. 2014), a ward’s son sought leave to relocate his father from Florida to Texas. The son indicated that most of the ward’s family lived in Texas so the move was in the ward’s best interests. The guardian, who is not identified, objected. The court found that after imposition of a guardianship, only the guardian has standing to change the ward’s residence. Accordingly, the petition was denied. In affirming, the Court of Appeals held that an interested party does not have standing to petition for a change in residence.

Visitation
In In re D.R., 2008 Del. Ch. LEXIS 250 (September 5, 2008), a guardianship was imposed and the ward’s granddaughter was appointed guardian. Unfortunately, the granddaughter did not get along with her mother, who was the ward’s daughter. Visitation became difficult for the daughter and that issue, among others, was raised in a petition alleging that the granddaughter was unfit to continue serving as guardian. To resolve this conflict, the court appointed a co-guardian “for the limited purpose of facilitating communication and visitation between the ward and her family.”

In In re Estate of Wertzer, 330 Ga. App. 294 (Ga. App. November 12, 2014), the parents of an incapacitated adult were divorced. The mother had custody. In 2013, the father filed a petition in superior court to modify visitation. In response, the mother filed a petition for guardianship and the father intervened seeking to continue and extend visitation. After the mother was appointed guardian, she filed a petition to dismiss the father’s petition relating to visitation, claiming the probate court had no authority to set visitation. The probate court rejected the mother’s position and “issued an order granting the father supervised visitation with Sierra during the third weekend of each month. The probate court slightly extended the hours of the Saturday visits, but denied the father’s request for overnight visitation and for an extended visitation period during the summer.” The mother appealed arguing, among other matters, the court exceeded its authority and that the order improperly impedes her duties as guardian.

The court of appeals rejected her argument finding that the probate court has power to establish a set visitation schedule. (Note 18)

Disputes over Health Care
Health care disputes can crop up while a petition is pending, or later, as an administration issue. The most famous case is Schiavo. Terri Schiavo suffered a cardiac arrest on February 25, 1990, secondary to a potassium imbalance. (Note 19). She was 27 years old. By the time paramedics arrived and restored her heart beat, she had suffered brain damage and slipped into a coma. Eventually Terri emerged from her coma, but she remained in a persistent vegetative state (PVS). She did not have an advance directive. Terri’s husband, Michael, was appointed as Terri’s guardian.

After an initial challenge to Michael’s status as guardian, Terri’s parents (the Schindlers) were excluded from participating in her care. Litigation resumed in earnest when, in 1998, Michael filed a petition for authorization to remove Terri’s PEG tube. (Note 20). Conflicting evidence was presented by Michael and by the Schindlers regarding Terri’s end of life wishes, although the Schindlers admitted that their alleged conversations with Terri took place while she was a child. The presiding judge found that Terri was in a PVS with no hope of regaining consciousness and granted the motion to discontinue life support. This ruling was the first in a lengthy legal battle which included three trips to the U.S. Supreme Court. Terri died on March 31, 2005.

While the focus of this article is not the Schiavo case, the case is worth noting since it began as a guardianship case and because of its notoriety. Michael, as guardian was required to petition for authority to terminate life support. Notice was given to interested parties. A hearing was held, where interested parties were afforded the opportunity to present evidence. Ultimately, the court was charged with determining what was in Terri’s best interests. (Note 21).

The standard applicable to surrogates making end of life decisions appears in Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261 (1990). There, the court rejected a substituted judgment approach in favor of a narrower standard allowing States to require clear and convincing evidence of the ward/patient’s wishes. (Note 22). In explaining the liberty interest of incompetent patients to refuse care, the Court stated:

The choice between life and death is a deeply personal decision of obvious and overwhelming finality. We believe Missouri may legitimately seek to safeguard the personal element of this choice through the imposition of heightened evidentiary requirements. It cannot be disputed that the Due Process Clause protects an interest in life as well as an interest in refusing life-sustaining medical treatment. Not all incompetent patients will have loved ones available to serve as surrogate decisionmakers. And even where family members are present, “there will, of course, be some unfortunate situations in which family members will not act to protect a patient.” In re Jobes, 108 N.J. 394, 419, 529 A.2d 434, 447 (1987). A State is entitled to guard against potential abuses in such situations. Similarly, a State is entitled to consider that a judicial proceeding to make a determination regarding an incompetent’s wishes may very well not be an adversarial one, with the added guarantee of accurate factfinding that the adversary process brings with it. See Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 515-516. Finally, we think a State may properly decline to make judgments about the “quality” of life that a particular individual may enjoy, and simply assert an unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual. ….In sum, we conclude that a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual’s decision would have been, require a clear and convincing standard of proof for such evidence. (Note 23).

In a Schiavo-like proceeding, a trial court was forced to choose which divorced parent would be appointed as guardian for their twenty-two year old daughter. In In re L.M.R., 2008 Del. Ch. LEXIS 255 (January 24, 2008), “L” was in a PVS secondary to a heroin overdose. She was pregnant at the time and her life was extended to permit the birth of her child. Thereafter, the court was called upon to determine which parent would be L’s guardian. Her mother testified that L would not want to live in a vegetative state and indicated that if she was appointed guardian, she would remove artificial means for preserving L’s life, including hydration and tube feeding. L’s father, on the other hand, expressed a desire to take L home and provide life prolonging care. The court considered lay testimony from four sources (L’s mother, father, an uncle and a boyfriend), the fact that she was reading a book on death with dignity and the fact that she overdosed before determining that L would not have wanted to live in a PVS. Specifically, the court heard evidence described as follows:

Testimony of L.’s mother provides the clearest window into L.’s wishes in this situation. According to her testimony, in 2005 she and L. were watching a program about another individual in a persistent vegetative state, Terri Shiavo. I take judicial notice of the fact that Terri Shiavo was a Florida resident reported to be in a persistent vegetative state, who was the subject of a struggle between her guardian and other relatives over withdrawal of nutrition and hydration in conditions similar to L.’s. The matter became one of national interest and was widely reported in news media several years ago. …. According to L.’s mother, after watching the program on Terri Shiavo, she and L. expressed that they would wish never to be maintained artificially as Terri Shiavo was at that time, given nutrition and water through a tube prolonging a persistent vegetative state. According to the petitioner, L. and her mother made reciprocal promises that they would ensure that neither would endure such a fate. Because of the similarity of the circumstances involving Terri Shiavo discussed by L. and her mother, and L.’s current condition, I find this very compelling evidence that L. would wish to refuse the treatment that is preserving her in a persistent vegetative state today.

L.’s father argues that the mother’s testimony is not credible because, according to him, L. was living with him during that period, and was unlikely to have been watching a television program with her mother. He also points out that he and his wife watched news coverage of the Shiavo case with L., and that L. did not make such a statement to either of them. ….

The petitioner and L.’s uncle, K.W., also testified to a separate conversation in which L. represented that she would never want to live with her life artificially supported and that surviving on life support, with others caring for her, would be “gross.” While less specific than the first conversation testified to by L.’s mother, Mr. W.’s testimony is corroborative of that account. Finally, L.’s boyfriend, N.C., testified via deposition that L. once told him that she would not want to live on artificial life-support. He also testified, however, that she was intoxicated and depressed at the time, so I put little weight into this testimony.

Other, less final, health care decisions arise in guardianship cases. In Conservatorship of Carol K., 188 Cal. App.4th 123 (2010), the court addressed the question “when should the state intervene to care for the non-dangerous mentally ill?” The issue was whether a conservatorship should have been established to facilitate nursing home care and the administration of antipsychotic medications for Carol. Medical testimony showed that Carol had on at least 10 occasions, lost community housing. Carol’s paranoia about abuse by staff, coupled with her refusal to take antipsychotic medication, resulted in frequent failed placements. He also testified Carol had 13 admissions to the mental health treatment center in 15 years. Her last placement lasted only a month. Other testimony showed that she refused food and water, ending up dehydrated and hospitalized. Given this evidence, the trial court’s determination that Carol was gravely disabled and in need of a conservatorship was affirmed.

In Kuelbs v. Hill, 2011 Ark. App. 628 (October 26, 2011), a case appealed at least four times, the court affirmed the circuit court, including an order authorizing the forced administration of antipsychotic medication; it was alleged that the medication was in the ward’s best interests and could prevent harm to herself and others.

In In re Estate of Wertzer, 2014 Ga. App. LEXIS 734 (November 12, 2014), the Court required the guardian (mother of an incapacitated adult), to confer with the ward’s father on all important matters relating to the ward. The guardian was also required to inform the ward’s father of the wards medical condition, residence and to inform him of any serious illness. The court of appeals affirmed the order in so far as it required the guardian to inform the father of the ward’s condition, but reversed to the extent “confer” means the guardian was required to consult with the father regarding decisions, or to the extent it meant the father had any right to direct decision-making.

In Kennedy v. Kennedy, 845 N.W. 2d 707 (Iowa 2014), a mother served as guardian for her 21 year old son with intellectual disabilities. After he admitted wanting to have sex with his girlfriend, his mother secured a restraining order against the girlfriend and arranged for an involuntary vasectomy. Her son challenged that action, attempting to have his mother removed as guardian. The probate court found that the conservator did not violate guardianship law by having the vasectomy performed without court approval and allowed her to continue as guardian. An appeal was granted even though the vasectomy was complete because the issue was capable of reoccurring. The Court of Appeals held that the guardian did violate the guardianship statute. After reviewing case law on sterilization procedures, the Court held “we would have serious doubts about the constitutionality of a statute that allowed a guardian to arrange for a ward to undergo a vasectomy without any court involvement.” However, by the time the appeal was heard, the ward no longer sought modification of the guardianship and only sought a ruling on whether a court order should be required prior to an involuntary vasectomy. Thus, the court of appeals declined to disturb the probate court order regarding the guardianship. (Note 24)

Divorce
The traditional rule is that divorce is a personal action that cannot be brought (initiated) by a guardian; the traditional rule did, however, permit defense of a divorce action brought by the other spouse. The traditional rule was changed in Georgia with adoption of the 2005 Guardianship Code. O.C.G.A. § 29-4-23(b)(4) provides the probate court may grant the guardian the right to “bring an action for the divorce of the ward based on any of the grounds listed in Code Section 19-5-3, except on the ground that the marriage is irretrievably broken.” (Note 25).

In Karbin v. Karbin, 2012 IL 112815; 977 N.E.2d 154 (Ill. 2012), the Court overruled In re Marriage of Drews, 115 Ill. 2d 201 503 N.E.2d 339, 104 Ill. Dec. 782 (1986), which prohibited a guardian from filing a divorce action. In re-examining its prior decision, the Court noted that adoption of a no-fault divorce statute makes it difficult “to accept the view that the decision to divorce is qualitatively different from any other deeply personal decision, such as the decision to refuse life-support treatment or the decision to undergo involuntary sterilization…. Thus, there is no reason why the guardian should not be allowed to use the substituted-judgment provisions found in section 11a-17(e) of the Probate Act to make all types of uniquely personal decisions that are in the wards’ best interests, including the decision to seek a dissolution of marriage.” Further, the court found that permitting the competent spouse the option of terminating a marriage, without granting the same right to the protected spouse, creates an inequality. The Court went on to hold:

Whether a guardian is initiating, responding to, or continuing a dissolution action, the interests of the ward that may require protection remain constant, regardless of the procedural posture of the case. Because under the Probate Act the guardian must always act in the best interests of the ward, when a guardian decides that those best interests require that the marriage be dissolved, the guardian must have the power to take appropriate legal action to accomplish that end. We therefore find no compelling reason to treat a guardian’s decision to seek court permission to institute a dissolution action on behalf of a ward any differently from the multitude of other innately personal decisions which may be made by guardians on behalf of their wards, including undergoing involuntary sterilization or ending life-support measures. All of these decisions made by guardians without knowing a ward’s wishes are just as personal—if not more so—than the decision to seek a divorce. All also may implicate the ward’s moral and religious beliefs. The provisions of our Probate Act cannot be so arbitrary as to empower a plenary guardian to make decisions with respect to all these matters except for the decision to end a marriage. Either the guardian can act in the best interests of the ward for all personal matters, or for none at all.

A different result was reached in McGee v. McGee, 998 N.E. 2d 270 (2013). A guardian filed a petition for dissolution of marriage, on behalf of the husband-ward, alleging the marriage was irretrievably broken. The wife countered arguing the marriage was never irretrievably broken. The trial court granted the petition and the wife appealed. On appeal the court found that the right to dissolve a marriage is a statutory right, not a common law right. Therefore, it can only be brought in a manner authorized by statute. Neither the marriage dissolution statute nor the guardianship statute provides a means for a guardian to file a divorce petition. Therefor the court erred in granting the petition. (Note 26).

In In re Guardianship of O’Brien, 847 N.W. 2d 710 (Minn. Ct. App. 2014), the opposite issue was before the court. Michael, a 27 year old ward with a serious persistent mental disorder, started dating a 20 year old. After seeing her for approximately 2 years, Michael petitioned the court for a judgment that he had the right to marry. His parents, the guardians, opposed the petition. The trial court granted a summary determination denying Michael’s petition. On appeal, the summary determination was reversed. Marriage is a constitutional, fundamental right; it is limited only by the individual’s capacity to enter into that contract. Further, a guardianship should be limited. The burden of proof was on those opposing the petition, and their evidence should be supported by expert testimony. The issue was not whether Michael had behavioral problems, but whether he had “mental capacity to comprehend the meaning, rights, or obligations of marriage.” Because the trial court made no findings regarding Michael’s capacity to enter into marriage, the case was reversed and remanded.

Estate Planning
In some circumstances, estate planning for the conservatee is permitted. O.C.G.A. § 29-5-23; § 29-5-36. (Note 27), In Murphy v. Murphy, 164 Cal. App.4th 376 (2008), the court reviewed California’s history permitting estate planning for a conservatee. The court’s primary function under the substituted-judgment statute is to make a decision (as the conservatee would if able) on the basis of information furnished to it.

In Hall v. Kalfayan, 190 Cal. App. 4th 927 (2010), Carlyle Hall filed a legal malpractice suit against the conservator’s attorney for failing to complete an estate plan for the ward, Ms. Turner. Hall had known Ms. Turner since the 1960s and was instrumental in identifying self-neglect and having a conservatorship established. During the course of interviews with Ms. Turner, comments were made that she wanted to leave more than half of her estate to Turner (she had no living spouse or children) and less than half to her niece. A living trust was prepared and the process was initiated to have the trust approved by the court. Ms. Turner died before the trust was approved, and Hall received nothing. Hall sued alleging that Kalfayan’s failure to timely perform his duties had deprived him of the majority of Ms. Turner’s estate. The trial court granted the attorney’s motion for summary judgment based on the absence of any duty to Hall. The court of appeals affirmed. The attorney’s duty was solely to the conservator, not to potential beneficiaries.

In Zagorski v. Kaleta, 404 Ill. App.3d 75 (2010), the court affirmed a trial court decision authorizing amendment of a trust to change the successor trustee and contingent beneficiary. In doing so, the Court held that statutory provisions authorizing estate planning by the conservator were not limited to tax planning. A contrary result was reached in In re Guardianship of E.N., 877 N.E.2d 795 (Ind. 2007), where the court found that gifts of substantially all of the ward’s estate were not authorized under the estate planning statute; the statute’s reference to tax planning indicated that the legislature intended gifts under the annual exclusion amount. Further, a gift of substantially all of the ward’s estate would have the effect of rewriting his or her Will, which is not authorized.

Fees
A conservator is entitled to compensation. In Georgia, the default compensation is two and one-half percent commission on all sums of money received by the conservator on account of the estate, except on money loaned by and repaid to the conservator, and 2 1/2 percent commission on all sums paid out by the conservator. O.C.G.A. § 29-5-50(a)(1). Other compensation is permitted in some circumstances. A conservator who failed to make annual returns as required forfeits his or her commission. Expenses are allowed in addition to fees. O.C.G.A. § 29-5-51.A petition for additional compensation may be granted as the court deems reasonable after appointment of a guardian ad litem and hearing. O.C.G.A. § 29-5-52.

Typically, attorney’s fees and guardian or conservator’s fees must be approved by the court if they are paid from the ward’s estate. They must be reasonable; the determination of what is or is not reasonable, however, should not turn solely on an arbitrary decision that the ward cannot afford services. In Sun Valley Group, Inc. v. Mallet, 233 Ariz. 29 (Ariz. Ct. App. 2013), a ward had an illiquid estate valued at approximately $811,000. The fee requested by the conservator was $96,859.60, plus $28,501.64 in legal fees. The probate court found the services provided were reasonable, necessary and in the best interests of the ward, but nonetheless cut the fee request in half because the ward could not afford to pay. The Court of Appeals reversed. In Arizona, probate courts are required to follow guidelines in determining the reasonableness of fee requests. Those guidelines require courts to consider: (1) the result, specifically whether benefits were derived from the efforts, and whether probable benefits exceeded costs, (2) whether the Professional timely disclosed that a projected cost was likely to exceed the probable benefit, (3) the professional’s skill and expertise, (4) the character of the work and skill required, (5) the work actually performed and the time required, (6) the customary fees and usual time expended for like services (Note 28), and (7) the risks and responsibilities associated with the work. While counsel has a duty to consider the cost-benefit of the representation and refrain from wasting the estate, the court could not reject a fee request without considering the guidelines, based solely on its opinion that the ward could not afford to pay.

In In re Estate of McKitrick, 326 Ga. App. 702 (2014), the Court held that an ambiguous fee agreement was an hourly agreement, rather than a flat-fee agreement, because that interpretation was the one which would uphold the contract in whole and in every part. The contract failed to mention the hourly rate. The probate court set that rate at $45 out of court and $60 in court, borrowing from the public defender’s fee schedule. The court of appeals reversed the probate court’s determination regarding hourly rate, indicating that parole evidence, such as a billing statement, might establish the hourly rate.

Standby Guardians
A designating individual may appoint a standby guardian who would serve under certain circumstances. For minors, the standby guardian would serve upon a health determination that the designating individual is unable to care for the minor due to the individual’s physical or mental health, as certified by a health care professional. See O.C.G.A. § 29-2-9 and § 29-2-10. No judicial intervention is required, but the standby guardian is required to file with the county probate court a copy of the standby guardianship designation. Bond is not required. Designation of a standby guardian does not relieve the parent of any support obligation. O.C.G.A. § 29-2-10. The statutory form used to designate a standby guardian for a minor appears at § 29-2-11. A designation of standby guardianship may be revoked by destruction or obliteration of the designation, or by giving written notice. O.C.G.A. § 29-2-12.

Malpractice
In Stine v. Dell’Ossa, 230 Cal. App. 4th 834 (Cal. Ct. App. 2014), a demur was sustained by the trial court after a successor conservator filed a malpractice action. (Note 29). The original conservator misappropriated $1 million dollars from the conservatorship. When the petition was filed, the original conservator represented most assets were in a trust and, therefore, were not subject to the bonding requirement. Real property and individual retirement accounts in the name of the ward were not disclosed to the court. It appeared that the original conservator’s attorneys monitored and/or assisted the original conservator with the management of the real property and retirement accounts, but did not report them to the court. The successor conservator brought a claim against the attorneys for the original conservator for failing to disclose assets in the conservatorship, thereby triggering the requirement for a bond. When the successor conservator sued, the attorneys alleged there was no attorney-client relationship upon which a suit could be based, and that the original conservator’s “unclean hands” were a defense. The Court of Appeals rejected each defense and reversed the trial court’s decision to sustain the demur. The fiduciary exception permits a successor conservator to maintain a suit notwithstanding the absence of an attorney-client relationship. With regard to the unclean hands, the successor conservator was blameless. While it would be unfair to allow the original conservator to profit from his wrongdoing, the successor conservator did not participate in that conduct. The successor steps into his shoes” only to the extent of his fiduciary authority; she does not step into the morass created by his personal malfeasance.

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Notes:

  1. A guardian may be required to give bond. O.C.G.A. § 29-4-30(a). See also O.C.G.A. § 29-5-40 through § 29-5-44.
  2. A guardian is not personally responsible for the ward’s expenses or contracts. O.C.G.A. § 29-4-22(c)(1) and (2). Guardians sometimes ask whether they are liable if the ward hurts someone. Although a guardian might be responsible for his or her own negligence, a guardian is not personally liable for the act or omissions of the ward. O.C.G.A. § 29-4-22(c)(3).
  3. In Butler v. Doe, 328 Ga. App. 431 (2014), a ward’s guardian filed suit against a teacher for personal injuries alleging the teacher failed to supervise the ward. In State Farm Mutual Automobile Insurance Company v. Myers, 316 Ga. App. 152 (2012), a guardian filed suit (losing on coverage issues) after a ward was a victim of sexual battery while riding in the backseat of a car. In Moore v. Stewart, 315 Ga. App. 388 (2012), guardians filed suit alleging damages following a motor vehicle collision.
  4. See also O.C.G.A. § 29-5-21. Of note, however, mere appointment of a guardian does not revoke the powers of an agent under an advance directive. O.C.G.A. § 29-4-21(b) and § 29-5-21(b).
  5. For conservators, see O.C.G.A. § 29-5-22 (obligations) and § 29-5-23 (authority) and § 29-5-71 (modification).
  6. In In re Loftus, 331 Ga. App. 329 (2015), the Court of appeals reversed a probate court which failed to hold a probable cause hearing on a restoration petition where the ward’s brother submitted his affidavit and the affidavit of a psychologist, both indicating that the ward could make and communicate significant decisions.
  7. Similar rules apply to attorneys-in-fact and would support an action to recover funds. See T.C.A. § 34-6-7.; O.C.G.A. § 10-6-25. For a review of standards applicable to conservators, see R. Fleming and R. Morgan, Standards for Financial Decision-Making: Legal, Ethical, and Practical Issues, 2012 Utah L. Rev. 1275 (2012).
  8. In Georgia, resignation is accomplished using the procedure outlined in O.C.G.A. § 29-4-50. A successor guardian is appointed using the procedure in O.C.G.A. § 29-4-51 and O.C.G.A. § 29-4-61.
  9. Graham argued that the Probate Court lacked jurisdiction to determine ownership of property and that the case should have been transferred to Superior Court for that purpose. However, her the verified petition was an admission in judicio and was binding, thus resolving the issue of ownership. A similar result was reached in In re Fennell, 300 Ga. App. 878 (2009). There, the Probate Court ordered the ward’s daughter to turn over a certificate of deposit to the conservator; due to her admission at trial that the funds really belonged to her mother, but she was holding them to prevent her brother from gaining access to them, the Probate Court had jurisdiction to require delivery of the funds to the conservator.
  10. O.C.G.A. § 29-5-30(a). The plan must be filed within two months following appointment. An updated plan should be filed with each annual accounting. O.C.G.A. § 29-5-30(c).
  11. In Knox v. Dean, 205 Cal. App. 4th 417 (Cal. App. 2012), there were allegations of waste and elder abuse where a successor conservator alleged, among other matters, that a former conservator allowed individuals to live rent-free in apartments owned by the ward’s estate. An in-home caregiver who was paid $4,200 provided a written declaration that she had never met the ward or provided care services. In Kozinski v. Stabenow, 39 Fla. L. Weekly D. 2302 (Fla. App. 2014), the court found that an action for surcharge against the conservator is a personal action requiring service and notice.
  12. O.C.G.A. § 29-4-40(a)and § 29-5-70(a) permit the court to hold a hearing on the petition of an interested party or on the court’s own motion if it appears the ward is being denied a right or privilege. O.C.G.A. § 29-4-52 authorizes a hearing on revocation or suspension of guardianship upon the petition of any interested person. After investigating the allegations, the court may revoke or suspend the guardian’s letters, require additional security, reduce or deny compensation or impose other sanctions, and may issue any other order appropriate under the circumstances. O.C.G.A. § 29-4-52(b). The ward or any interested person acting for the ward has a cause of action exists against the guardian if there has been a breach of fiduciary duty. O.C.G.A. § 29-4-53. A trust is imposed on any traceable misapplied assets. Id. In In re Hinkhouse, 840 N.W. 2d 728 (Iowa Ct. App. 2013), a mother was removed as guardian for failing to cooperate with mental health providers after her son’s community-based placement was unsuccessful and after he was arrested for arson.
  13. In Karem v. Bryant, 370 S.W. 3d 867 (Ky. 2012), the conservator, who was the son of the ward, was removed and ordered to file accountings after commingling funds from settlement of a motor vehicle collision which paid his father’s estate and his mother’s guardianship.
  14. “The law will not permit a guardian to act in such a manner that his own personal interest may come in conflict with the interest of his ward.” Allen v. Wade, 203 Ga. 753 (1948).
  15. Comment 11 to Rule 1.2 indicates that where a lawyer represents a fiduciary, the lawyer may be charged with special obligations in dealing with a beneficiary. Restatement 3rd of the Law Governing Lawyers, §51 indicates that a lawyer representing a fiduciary owes a duty to the principal.
  16. In Stine v. Dell’Ossa, 230 Cal. App. 4th 834 (Cal. App. 2014), discussed infra, attorneys were sued for malpractice after failing to inform the court of assets owned by the ward, which were later misappropriated by the original conservator.
  17. Comments to Restatement 3rd of the Law Governing Lawyers, § 51, indicate that the lawyer’s duty to non-clients exists “only when the beneficiary of the client’s fiduciary is not reasonably able to protect its rights. That would be so, for example, when the fiduciary client is a guardian for a beneficiary unable (for reasons of youth or incapacity) to manage his or her own affairs.” Thus, a lawyer who chooses to stand idle and watch the guardian or conservator commit abuse may have liability for his inaction.
  18. The Court of appeals cited Mitchum v. Manning, 304 Ga. App. 842 (2010), which also permitted vitiation.
  19. B. Winick, A Legal Autopsy of the Lawyering in Schiavo: A Therapeutic Jurisprudence/Preventative Law Rewind Exercise, 61 U. Miami L. Rev. 595 (2007). Background facts are related at pages 602 through 605.
  20. “Percutaneous endoscopic gastrostomy is an endoscopic medical procedure in which a tube (PEG tube) is passed into a patient’s stomach through the abdominal wall, most commonly to provide a means of feeding when oral intake is not adequate.” http://en.wikipedia.org/wiki/Percutaneous_endoscopic_gastrostomy.
  21. Florida law provides for the application of a substituted judgment test by the guardian, in the best interests of the ward. See J. Wolfson, Schiavo’s Lessons for Health Attorneys When Good Law Is All You Have: Reflections of the Special Guardian Ad Litem to Theresa Marie Schiavo, 38 J. Health Law 535 (2005). An Issue Brief on Standards for Making Medical Decisions was developed as part of the Third National Guardianship Summit (2011), formerly available at http://www.guardianshipsummit.org/wp-content/uploads/2011/07/Issue-Brief-Medical-Decision-Making-final1.pdf. (This document was not available in the web archive as of July 17, 2021).
  22. “The transition of patient self-determination regarding health care decision-making from a common-law principle stemming from the law of battery to one of constitutional imperative has important implications for the guardianship system. It is clear from Cruzan itself that all persons, including those with severe impairments, enjoy the personal liberty interests involved when medical treatment is at issue. This necessarily implies that a court-appointed guardian is obligated to ensure that the ward’s own preferences are reflected in every health care-related decision the guardian makes, in every context, unless doing so is impossible or an exception to the principle of self-determination regarding health care exists in a particular situation.” K. Dayton, Standards for Health Care Decision-Making: Legal and Practical Considerations, 2012 Utah L. Rev. 1329 (2012).
  23. In In re Guardianship of Tschumy, 834 N.W. 2d 764 (Minn Ct. App. 2013), the Court held that court approval is not required to disconnect life support from a permanently unconscious ward where a prior statutory grant of medical consent had been given to the guardian, and where no interested party has objected.
  24. See Guardianship of L.H., 84 Mass. App. Ct. 711 (2014) (affirming order of antipsychotic drug).
  25. Permitted grounds include intermarriage within prohibited degrees of consanguinity; mental incapacity at time of marriage; impotency; force, menace, duress or fraud in obtaining the marriage, pregnancy of wife by another man, adultery after marriage, willful and continued desertion, conviction of a crime of moral turpitude with a sentence of two years or longer, habitual intoxication, cruel treatment, incurable mental illness, or habitual drug addiction. See O.C.G.A. § 19-5-3.
  26. See also Tillman v. Tillman, 2013 Ind. App. LEXIS 326 (July 3, 2013).
  27. O.C.G.A. § 29-5-23(a)(8) permits revocation of a trust. O.C.G.A. § 29-5-23(c)(8) permits creation of a trust and § 29-5-29(c)(11) permits estate planning for the ward. O.C.G.A. § 29-5-36 provides that estate planning, as permitted under the previously cited code sections, authorizing transfers outright, or in trust. The Code requires notice to interested parties and a finding that the ward will probably remain in need of a conservator throughout his or her lifetime. The Code appears to contemplate planning for surplus assets only. The court must find that the contemplated transfers are those that a competent, reasonable person in the ward’s circumstances would make. There must not be any evidence that the ward would not adopt the plan. The substituted judgment rule is not specifically adopted in the Georgia rule, but the standard is substantially similar. It is unclear whether the Georgia rule permits Medicaid planning for the ward since the court must specifically find that the assets are not required for the ward’s probable expenses for support, care, education, health or welfare before authorizing estate planning.
  28. In Hook v. Rego, 98 So.3d 183 (Fla. App. 2012) a trial court decision was reversed after the trial court reduced a certified elder law attorney’s fee from $250 per hour to $200 per hour and the only evidence of record indicated that her hourly rate was reasonable and customary.
  29. A demur is a pleading still used in some jurisdictions, but not currently in use in Georgia. It is a kin to a motion to dismiss for failure to state a claim. A demur admits, provisionally, for purposes of testing the pleading, all material facts properly pleaded.

 

 

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