Guardianship Book Chapter 7: Termination Issues

The proper goal of a guardianship is to terminate it. “In every guardianship, the ward has a right to be restored to capacity at the earliest possible time.” O.C.G.A. § 29-4-20(a)(7). A petition to terminate a guardianship may be filed by any interested person, including the ward or on the court’s own motion. O.C.G.A. § 29-4-42(a). (Note 1). A multi-layered probable cause evaluation, similar to the one required for the appointment of a guardian is required. If there is probable cause for a hearing, the standard of proof is a preponderance of the evidence. O.C.G.A. § 29-4-42(c).

As a rule, the authority of a guardianship or conservator terminates either upon the ward’s death or when earlier terminated. O.C.G.A. § 29-4-42(e) (death automatically terminated the guardianship). However, the duties of the guardian continue until he or she is released by the Court. (Note 2). O.C.G.A. § 29-4-43 requires the filing of a final status report by the guardian and a final return by the conservator. In In re Estate of Haring, 314 Ga. App. 770 (2012), the executor of Clorina Haring’s estate petitioned for a final accounting from the conservator, who had served for five and a half years prior to Ms. Haring’s death. Evidence showed that Ms. Haring and the conservator began living together in 1974. In 2001, conservator and Ms. Haring’s son petitioned to have a conservator appointed because Ms. Haring developed Alzheimer’s and was no longer competent to care for her affairs. The conservator was appointed and bonded, filing annual reports as required. The conservator served until Ms. Haring died on December 26, 2006. In April, 2007, the executor petitioned for an accounting, alleging failure to deliver money to the estate. At a two day hearing where 15 people testified, the evidence showed that when McQuien became Haring’s guardian and conservator, Haring had approximately $250,000 in cash and certificates of deposit (CDs), and when she died, she had $70,000 left.” In establishing how the funds were used, the evidence showed that Ms. Haring’s son wanted to put Ms. Haring in a nursing home. The conservator, on the other hand,

said that as long as he was alive and able to care for her, he would not do that. McQuien paid a sitter $8.50 an hour to stay with Haring while he was at work. During his 67-month conservatorship, McQuien wrote checks to the sitter totaling $140,282, and paid her additional sums in cash. The sitter testified that McQuien kept track of her hours and paid her at least weekly. Haring testified that he paid the sitter more often than weekly when she needed it. She took Haring for rides in Haring’s car, which two experts testified was therapeutic for Alzheimer patients. McQuien also wrote checks to himself and for cash during this period that totaled $82,888, and testified that he used some of that to pay the sitter in cash and the rest for food and other household expenses. He also testified that the source of Haring’s certificates of deposit was the $725 monthly rent payments he made to Haring from 1974 to 1998, which Haring never spent. In 2005, he asked Haring’s sons to cash in some certificates because the money in Haring’s checking account was “getting low,” but they refused, so he cashed in other CDs for $43,000.

The evidence showed the cost of institutional care would have been $40,000 to $70,000 per year. The cost of an hourly sitter through an agency would have been $14.50 to $15.00 per hour at the time. Testimony was presented that Alzheimer’s patients did better mentally and cognitively when kept at home instead of in an institution. A social worker who visited two to three times each month testified that the conservator provided wonderful care. Haring was always clean, dressed and sitting on a sofa instead of left in her bed. Haring was vibrant and animated during the social worker’s visits. Based on the evidence, the probate court found the conservator spent less money than it would have cost to care for Haring in a licensed facility and that the funds spent were reasonable. There was no evidence that the conservator converted Haring’s funds for personal use. The petition was denied and the conservator was discharged without further liability. (Note 3).

In F.W. v. B.W. (In re F.W.), 824 N.W. 2d 561 (Iowa Ct. App. 2012), the ward’s wife was appointed as guardian for her 73 year old husband. Approximately nine months later, the ward’s counsel moved for termination of the guardianship. Medical evidence showed the ward “had some mental impairments such as slowed processing speed and poor memory, but concluded F.W. was not in need of guardianship or conservatorship.” Further, the ward provided lucid and rational testimony in support of his petition. The court found the ward made a prima facie showing of some decision-making capacity, which shifted the burden of proof to the ward’s wife. Because she failed to prove the requisite incompetence to warrant maintenance of the guardianship, the court of appeals affirmed dissolution of the guardianship. (Note 4).

In In re Guardianship of Bostrom, 2014 Minn. App. Unpub. LEXIS 158 (March 3, 2014), the Court of Appeals affirmed denial of a petition to terminate a guardianship. There, the ward ‘was ill with a psychotic disorder secondary to a traumatic brain injury, which grossly impaired her judgment, behavior, capacity to recognize reality, or to reason or understand, so that she posed a substantial likelihood of causing physical harm to herself or others.” She was involuntarily committed in 2007 and 2009 due to behavioral issues secondary to her condition. In 2011, the guardianship was imposed. In May, 2012, she was again committed after a finding that she refused to take her medication and had engaged in outbursts and belligerent actions. Three months later, the ward petitioned for termination of the guardianship. The trial court denied her request, finding that she continued to have an organic brain injury which impaired her behavior, judgment and capacity to recognize reality. Notwithstanding unrebutted testimony that the ward was able to meet her own personal needs, the trial court did not abuse its discretion in light of her recent treatment history.

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  1.  O.C.G.A. § 29-5-72 (conservatorships).
  2. Hoyt v. Goyer, 107 So.3d 1085 (Ala. 2012) (“The administration of a protected person’s estate is not closed until there is a final settlement…. it does not automatically terminate upon the protected person’s death or even when an administrator is appointed for that person’s post-death estate”).
  3. The court then went on to award attorney’s fees to the conservator. Both rulings were upheld on appeal.
  4. See also In re Rosenberg, 211 Md. App. 305 (2013), where the Court indicated the initial burden of proof in terminating a guardianship is preponderance of evidence. After that evidence is presented, the burden of proof shifts to the party seeking to continue the guardianship.

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