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The Mental Capacity Needed To Change Domicile

October 5, 2016

Authors

Luke Lantta

The Mental Capacity Needed To Change Domicile

October 5, 2016

by: Luke Lantta

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

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

July 28, 2015

Authors

Luke Lantta

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

July 28, 2015

by: Luke Lantta

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,

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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,

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

January 21, 2015

Authors

Luke Lantta

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

January 21, 2015

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

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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

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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

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Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

Authors

Luke Lantta

Collateral Estoppel Did Not Prevent Georgia Will Contest

March 11, 2014

by: Luke Lantta

Guardianship actions sometimes serve as a precursor to will contests.  If a petitioner seeks a guardianship of an alleged incapacitated adult and loses, what implications does that ruling have on a later will contest alleging incapacity?  In Copelan v. Copelan, the Georgia Supreme Court addressed that question while cleaning up some overruled guardianship law.  In the end, it came down to the standard of proof.

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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.

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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

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