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Picking A Conservator: Speak Now Or The Court May Forever Hold Your Peace

November 17, 2016

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Guardianships and conservatorships are seldom happy events.  Despite whatever may have precipitated the need for financial or personal protection, there must be an attempt to respect the desires of the ward, if possible.  That’s why, when it comes to picking a conservator, the ward’s choice falls first in the order of priorities of appointment.  However, in In re Estate of Curtis, the Georgia Court of Appeals determined that’s where the order of priority may end – at the inception of the conservatorship.

A ward wanted to replace his conservator for a variety of reasons.  And, while the appellate court’s opinion focused mainly on evidentiary issues, it also addressed how to handle a ward’s preference for a particular conservator.  The time for a ward to express his or her preference is at the initial appointment of the conservator.  Nothing in the record demonstrated that the ward had

The Mental Capacity Needed To Change Domicile

October 5, 2016

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In litigation, domicile matters because it can control where a lawsuit must be filed and fought.  For most of us, where we are domiciled should be straightforward.  It’s the place where we actually live and intend to remain.  Domicile questions can get a little trickier when someone moves around.  Domicile questions can start to get really tricky when the mental capacity of someone is impaired and that person moves around.  If domicile requires someone to form the intent to remain in a certain place, how much mental capacity is needed to form that intent?

In Estate of Milton Theophilus Pond, II, the Georgia Court of Appeals considered the domicile of a person whose capacity was sufficiently impaired by autism to warrant a guardianship.  The ward lived with his mother in North Carolina during the school year and spent his summers with

WHEN IS AN ADOPTION NOT EFFECTIVE TO CHANGE INHERITANCE RIGHTS?

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In Lubin v. AT&T Ret. Sav. Plan (2015 WL 4397703), an adoption was not given effect in determining who would receive the life insurance benefits at issue.

In this case, Austin Hardy participated in a Retirement Savings Plan (“Plan”), which included a life insurance benefit. At his death, he was survived by his sisters, Pauline Lubin and Frances Koryn (Plaintiffs), and his biological daughter, Jennifer Krokey. Although Krokey was Hardy’s biological child, she had been subsequently adopted by a step-father. Under Florida law, a child who is adopted is the child of the adopting parent and ceases to be a child of the biological parent for all purposes.

Updates to Florida UTMA and Florida Health Care Surrogate Statutes

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Uniform Transfers to Minors Act

Florida’s Uniform Transfers to Minors Act (“UTMA”), found under Florida Statutes Chapter 710, provides a mechanism for the creation of custodial accounts for gifts, bequests or other transfers to minors, without requiring the presence of an appointed guardian for the minor. Previously, under Florida’s UTMA, minors were defined as persons under the age of 21. The new UTMA statute, effective July 1, 2015, permits custodianships to last until the age of 25. A custodianship under Florida law can be created if the transferor, the custodian or the minor resides in Florida or if the custodial property is situated in Florida.

Health Care Surrogates

A designation of a Health Care Surrogate is a written document appointing someone to make health care decisions for an individual (the “Principal”) or receive health information on such person’s behalf in

Do You Really Want To Serve As A Guardian Ad Litem?

July 28, 2015

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Guardians ad litem serve an important purpose.  They are officers of the court appointed to look after the interests of those who cannot look after their own interests, such as minors or the incapacitated.  Though they may be lawyers, they are not the lawyers for their wards.  This distinction is meaningful.

In trust and estate disputes, a non-litigating estate planning lawyer often gets appointed as guardian ad litem for minor beneficiaries or the unborn, unknown descendants.   That guardian ad litem also often makes a written report to the court.  Those who have experienced them know that trust and estate disputes can be incredibly contentious.  Is that guardian ad litem – who may have spent a career trying to avoid being in a courtroom – ready to get put on the witness stand?

Many guardians ad litem may say, “wait, I didn’t sign up to be

Restoration Of A Ward’s Rights

April 8, 2015

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Restoration Of A Ward’s Rights

April 8, 2015

Authored by: Luke Lantta

A guardianship or conservatorship in Georgia is not necessarily permanent.  If a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning his health or safety, a guardianship may be terminated.  Similarly, if a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning her finances, then a conservatorship may be terminated.  Sometimes, the evidence is clear one way or the other but, at other times, the evidence conflicts.

In In re Loftus a/k/a Serewicz, the Georgia Court of Appeals instructed that, when the evidence conflicts on whether a ward has regained capacity, the probate court must hold a hearing on a restoration petition.  In this case, a licensed psychologist submitted an affidavit that the ward had regained sufficient capacity, but a licensed social worker submitted a report that the ward still

Probate Court Could Not Dismiss Guardianship Petition Absent Evaluation Of Proposed Ward

January 21, 2015

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At first blush, the Georgia Court of Appeals’ recent guardianship opinion in In re: Estate of Radric D. Davis seems intuitive: if a probate court finds probable cause to warrant the filing of a guardianship petition, then the probate court cannot later dismiss that petition without an evaluation of the proposed ward.  But, that this issue was before the whole appellate court instead of an appellate panel is the first indication that perhaps the question is more complex than it first seems.

A petition was filed for appointment of a guardian and/or conservator for Radric Davis.  The probate court reviewed the petition and determined that there was sufficient evidence to believe that the proposed ward was in need of a guardian and/or conservator.  A licensed clinical social worker was ordered to evaluate the proposed ward.  The first evaluation was rescheduled because the

Probate Court Orders Visitation Of Ward Over Guardian’s Objection

December 18, 2014

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Guardians are given a lot of powers and rights, but those powers and rights are not unfettered.  In In re Estate of Sierra Leigh Wertzer, the Georgia Court of Appeals determined that Georgia probate courts have the authority to enter orders establishing visitation schedules for a ward, over the objection of the ward’s guardian.

In this case, the ward’s mother and father had divorced, and a visitation schedule had been established in the divorce proceedings.  When the ward was about to turn 18 years of age, the mother sought to be appointed as the guardian and conservator.  The father sought to continue and extend the visitation he had been granted in the divorce proceedings.  The mother was appointed as guardian and conservator and objected to the father’s request for visitation, contending that the probate court could not “force” the adult ward to visit her father.  The

Georgia Probate Court Could Trump Parties’ Selection Of Guardian

July 29, 2014

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Guardianship litigation can be painful and divisive, so you might think that a probate court would rejoice when the parties reach a settlement.  But, as the Georgia Court of Appeals explained in In re: Estate of James Irwin Kaufmann (link via FindLaw), the parties’ agreement cannot force a probate court to abdicate its statutory duties when it comes to appointment of a guardian.

A probate court made an emergency appointment of James Kaufmann’s adult son, Rocco, as guardian and conservator of Kaufmann.  Later, the probate court appointed Rocco as Kaufmann’s guardian, but appointed Jerry L. Landers, Jr. as Kaufmann’s conservator.  Kaufmann then filed a petition for restoration of an individual formerly found in need of a guardian and/or conservator in which Kaufmann requested a restoration of his rights or, in the alternative, appointment of a new guardian and new conservator.  The parties mediated the matter

Conservator Did Not Have A Conflict Of Interest

April 15, 2014

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Often family members receive priority when it comes to being appointed conservator of an incapacitated adult.  If a conservator – who has control over the finances of the ward – is also named as a beneficiary in the ward’s will or recipient of some other of the ward’s assets upon death, the argument goes that the conservator is incentivized to not spend funds in support of the ward.  Is this a conflict of interest that precludes appointment of such a conservator or warrants removal?

In In re Estate of Lorraine McKitrick (via FindLaw), the Georgia Court of Appeals affirmed a probate court’s order that it did not.  In this case, the conservator was the ward’s son and had a potential death benefit in the ward’s accounts.  The ward had complained that the conservator refused to “spend any of the corpus of the Estate

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