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Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

Authors

Luke Lantta

Guardians Should Guard Against Claims Of Undue Influence

June 7, 2017

by: Luke Lantta

guardian‘s job requires that the guardian be involved in the affairs of the ward.  In turn, the ward likely is going to be dependent on and trust the guardian.  Chances are – because Georgia sets an order of preference for persons eligible to become a guardian for a ward – the guardian also may be a close family member.  Since people often like to put their family members into their wills as beneficiaries, a guardian may run into a situation where the ward names him or her as a beneficiary of the ward’s estate.  While that seems all well and natural, because of the fiduciary relationship between guardian and ward, that will may get a close look by a court.

So what is a guardian to do?

Distance herself from the estate planning process.

While there is no

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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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Guardianships For Alcoholics

February 25, 2014

Authors

Luke Lantta

Guardianships For Alcoholics

February 25, 2014

by: Luke Lantta

Knowing when to initiate guardianship proceedings for a loved one can be a difficult and personal decision.  When it comes to substance abuse, those proceedings can enter a grayer area than proceedings involving dementia, injury, or developmental disability.  At what point is an addict or alcoholic incapacitated?  What happens during moments of sobriety?  In In re Guardianship of Esterly (unpublished), the Court of Appeals of Minnesota dealt with some of these difficult questions.

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Indiana Guardians Not Permitted To File Petitions For Dissolution Of Marriage

November 7, 2013

Authors

Luke Lantta

Indiana Guardians Not Permitted To File Petitions For Dissolution Of Marriage

November 7, 2013

by: Luke Lantta

In contrast to a case from Michigan we looked at earlier this year, in McGee v. McGee, the Indiana Court of Appeals has reaffirmed that Indiana statutes do not authorize a guardian to file a petition for dissolution of marriage on behalf of his or her ward.

While Indiana statutes allow the guardian of an incapacitated person to take action and to make decisions for the benefit of an incapacitated person, the filing of a petition for dissolution of marriage on behalf of an incapacitated person is not one of those actions or decisions.

 

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