Trust BCLP

Trust BCLP

georgia conservatorship litigation

Main Content

Restoration Of A Ward’s Rights

April 8, 2015

Authors

Luke Lantta

Restoration Of A Ward’s Rights

April 8, 2015

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,

Read More

Probate Court Orders Visitation Of Ward Over Guardian’s Objection

December 18, 2014

Authors

Luke Lantta

Probate Court Orders Visitation Of Ward Over Guardian’s Objection

December 18, 2014

by: Luke Lantta

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

Read More

Georgia Probate Court Could Trump Parties’ Selection Of Guardian

July 29, 2014

Authors

Luke Lantta

Georgia Probate Court Could Trump Parties’ Selection Of Guardian

July 29, 2014

by: Luke Lantta

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

Read More

Conservator Did Not Have A Conflict Of Interest

April 15, 2014

Authors

Luke Lantta

Conservator Did Not Have A Conflict Of Interest

April 15, 2014

by: Luke Lantta

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

Read More

Georgia Appellate Court Clarifies What It Takes For An Emergency Guardianship

June 11, 2013

Authors

Luke Lantta

Georgia Appellate Court Clarifies What It Takes For An Emergency Guardianship

June 11, 2013

by: Luke Lantta

Few appellate opinions give us a window into contested guardianship proceedings.  Fewer still give us insight into what it takes to obtain an emergency guardianship.  In In the Interest of Farr, the Georgia Court of Appeals let us know that the “emergency” needed for an emergency guardianship needs to be an actual emergency.

St. Joseph’s Hospital in Savannah wanted an emergency guardian for one of its patients, Claudine Tapley Farr.  The hospital wanted an emergency guardian appointed to facilitate the patient’s discharge from the hospital.  That wasn’t an emergency.

Read More

Georgia Conservator’s Final Accounting Approved After Trial

April 18, 2012

Authors

Luke Lantta

Georgia Conservator’s Final Accounting Approved After Trial

April 18, 2012

by: Luke Lantta

Talk to a guardian or conservator and you’ll likely find out it is a thankless, demanding job.  Often these fiduciaries not only have to provide a great deal of care and protection for their wards but also have to be wary of persons eager to bring claims against them for converting the ward’s assets, breaching fiduciary duties, or any number of other possible claims.

Take for example the case of James McQuien.  McQuien began living with Clorina Haring way back in 1974.  In 2001, Haring wasn’t doing so well on account of Alzheimer’s, so McQuien was appointed Haring’s guardian and conservator.  In this role, McQuien hired a sitter for Haring while he was at work and wrote checks to himself and for cash, some of which he used to pay the sitter and the rest of which he used for food and

Read More

Serial Victim Of Fraudulent Lottery Schemes Needed Conservator

February 27, 2012

Authors

Luke Lantta

Serial Victim Of Fraudulent Lottery Schemes Needed Conservator

February 27, 2012

by: Luke Lantta

Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward.  That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area.  At the probate court level, much of the information is kept under seal.  Once it goes up on appeal, however, that which was once private gets a very public airing.

In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator.  In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes.

Read More
The attorneys of Bryan Cave Leighton Paisner make this site available to you only for the educational purposes of imparting general information and a general understanding of the law. This site does not offer specific legal advice. Your use of this site does not create an attorney-client relationship between you and Bryan Cave LLP or any of its attorneys. Do not use this site as a substitute for specific legal advice from a licensed attorney. Much of the information on this site is based upon preliminary discussions in the absence of definitive advice or policy statements and therefore may change as soon as more definitive advice is available. Please review our full disclaimer.