January 21, 2015
Authored by: Luke Lantta
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 ward had been moved, and the second evaluation was unsuccessful because the proposed ward refused to meet with the evaluator without his attorney present. After the attempted evaluation, the social worker filed a report with the probate court stating that no evaluation had taken place because of the proposed ward’s refusal to meet and stating that the evaluator did not have enough information to make a finding. The probate court then dismissed the petition.
A majority of the appellate court held that this dismissal of the petition was in error. The majority looked at a number of the guardianship statutes and construed them together. If a probate court makes an initial finding of probable cause, then the probate court shall order an evaluation of the proposed ward and must appoint one of several listed professionals to evaluate the proposed ward. During the evaluation, the proposed ward may remain silent and may have legal counsel present, but legal counsel may not participate in the evaluation. The report is required to contain certain information. After the report is filed, the probate court is required to review the report and pleadings to make another probable cause determination. Here, the required evaluation never actually took place, but the probate court still went on to make a finding that no probable cause existed to support a finding that the proposed ward was in need of a guardian or conservator and dismissed the petition. The appellate court found that a dismissal at that stage could be made only after the probate court reviewed the required evaluation report. Which, of course, requires that there actually be an evaluation report to review.
The dissent focused on the problematic practical implications of the majority’s decision. The dissent argued that, under the majority’s reasoning, a proposed ward can indefinitely fend off evaluations by refusing to participate without counsel being present. How is a probate court to manage repeated fruitless attempts to force evaluations? It seems like the potential to remain indefinitely in guardianship limbo. The majority provided no indication of what a probate court is to do under those circumstances.