Guardianship and Conservatorship 101
| Publication year | 2022 |
| Pages | 0016 |
GBJ The Legal
Guardianship and Conservatorship 101
This article provides a primer on the subject of guardianship and conservatorship under Georgia law, including what happens before and after a guardian and/or conservator is appointed.
BY KRISTIN POLAND
Recent pop culture events have shined a not-so-flattering light on the subject of guardianships and conservatorships of adults. The film "I Care a Lot" premiered on Netflix at a time when, due to the COVID-19 pandemic, many of us spent our days at home consuming huge amounts of streaming service content. It tells the story of an unscrupulous woman who used guardianship proceedings as a way to accumulate the assets of those over whom she was given authority. The #FreeBritney movement put the real-world example of Britney Spears' conservatorship in the forefront of the news cycle.
For those who practice in this field, we know that the Thanksgiving and Christmas holidays often bring about a large increase in the number of guardianship and/ or conservatorship cases filed with the courts. Holiday stress can lead to mental health issues that need to be addressed. Adult children who visit with aging parents for the holidays often realize that mom and dad can no longer care for themselves adequately. We often see adult children find out when they arrive for a holiday visit that utility bills have gone unpaid and t their parents' electricity or water services have been shut off. It is not uncommon to return for a visit to discover that someone in whom a if vulnerable adult has placed trust is perpetrating financial or physical abuse upon that adult. In one particularly memorable case, the
adult children found upon their arrival that their father had died in the home, and their mother's dementia had progressed to the point that she did not realize what had happened. These cases demonstrate that cognitive issues that may be masked from a distance are far more obvious when visiting in person.
But how much do people who do not regularly work in the probate courts understand about guardianships and conservatorships? This article provides a primer on the subject under Georgia law.
Guardianship and Conservatorship in General
Under Georgia law, a guardian is appointed to oversee the health and safety of another; a conservator is appointed to oversee the management of the property of another. This concept has its roots in the English common law doctrine of parens patriae, where the king was ultimately responsible for caring for those among his subjects who were unable to care for themselves. This concept was codified as early as 1324 in the statute De Praerogativa.[1] In Georgia, early law provided that courts could "appoint guardians for the following persons, viz.: Idiots, lunatics, and insane persons, and deaf and dumb persons when incapable of managing their estates, habitual drunkards, and persons imbecile from old age or other cause, and incapable of managing their estates."[2]Under Georgia's 1933 Code, "persons who are mentally ill, mentally retarded or mentally incompetent to the extent they are incapable of managing their estates" were subject to the appointment of a guardian.[3] In these earlier versions of the law, the term "guardian" was used to describe a person who would oversee both the person and the property of another.
Under current Georgia law, "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."[4] Similarly, "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."[5] Guardianship and conservatorship may be sought together where appropriate, or a petition maybe brought for one or the other alone. Where guardianship and conservatorship are both sought, it is not necessary to seek the appointment of the same individual to fill both roles.
The granting of a guardianship and/ or conservatorship has a far-reaching impact on the lives of the individuals involved, most especially the adult over whom a guardianship and/or conservatorship is granted, referred to as a ward. Under a plenary guardianship, the ward has important rights removed, including the power to contract marriage; to make, modify or terminate other contracts; to consent to medical treatment; to establish a residence or dwelling place; to change his or her domicile; to revoke a revocable trust established by the ward at an earlier date; and to bring or defend any action at law or equity, except as related to the guardianship.[6] A plenary conservatorship removes from the ward the power to make, modify or terminate contracts (except the power to contract marriage); to buy, sell or otherwise dispose of or encumber property; to enter into or conduct other business or commercial transactions; to revoke a revocable trust established by the ward at an earlier date; and to bring or defend any action at law or equity, except as related to the conservatorship.[7] Because the result of a successful petition for guardianship and/or conservatorship means the removal of important civil and legal rights from an adult, such actions should always be viewed as adversarial to that adult.
Jurisdiction and Venue
In guardianship and conservatorship cases, subject matter jurisdiction lies in the probate court, which has "original, exclusive, and general jurisdiction of... the appointment and removal of... guardians of incapacitated adults, and conservators of incapacitated adults and persons who are incompetent because of mental illness or intellectual disability."[8]
Jurisdiction is governed by the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act (UAGCPJA), codified at O.C.G.A. §§29-11-1 et seq. UAGCPJA "provides the exclusive jurisdictional basis for a court of this state to appoint a guardian or issue a conservatorship order for an adult."[9] Further,
Article 2 of the UAGCPJA creates a three-tiered approach to jurisdictional issues between states, and under that approach, 'the state court that may have jurisdiction would be, in order of priority: 1) the court in the respondent's home state; 2) the court of a state with which the respondent has a significant connection; or 3) a third state that is neither the home state nor a significant-connection state.' These tiers are established in four paragraphs of O.C.G.A. § 29-11-12, which specify several circumstances under which "[a] court of this state has jurisdiction to appoint a guardian or issue a conservatorship order for a respondent.[10]
Importantly, under UAGCPJA, in cases where "unjustifiable conduct" led to jurisdiction over the proposed ward, the court may decline to exercise its jurisdiction, exercise jurisdiction for the limited purpose of ensuring the protection of the proposed ward or continue to exercise jurisdiction after considering the acquiescence of those entitled to notice of the proceedings, the appropriateness of the forum and the existence of another state with jurisdiction over the proposed ward.[11] UAGCPJA does not define "unjustifiable conduct."[12] Presumably, a classic case of "granny snatching," whereby an adult with diminished capacity is removed from her usual place of abode and existing support system for nefarious purposes (usually involving financial exploitation) would qualify.[13] However, it would appear likely that the courts may be asked to explore the boundaries of the definition of "unjustifiable...
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