Let’s start off by saying that not all guardianships and conservatorships are bad. Guardianships and Conservatorships play a vital role in Georgia by allowing caretakers the means to make financial (Conservator of the Property) and health (Guardian of the Person) related decisions for those who are not able to do so any more and have no one else to speak for them.
Unfortunately, court-appointed guardianships and conservatorships are expensive, time consuming, and sometimes do not work out in the best interests of the ward or his or her family, so many estate planning lawyers are often asked to advise their clients about the best ways to avoid a conservatorship. The simple answer is that advanced planning can almost always keep a person’s affairs out of the probate court. The following are some of the tools estate planning attorneys use to ensure their clients have a say in who will handle their affairs for them when they are no longer able.
Power of Attorney
A Power of Attorney is a document that grants an agent authority to act on behalf of a person (the principal) in various financial matters, such as paying bills, buying and selling real estate, or even conducting business dealings. Either a Springing Power of Attorney (in effect only if the principal is incapacitated) or a Durable Power of Attorney (in effect even after the principal is incapacitated) could help avoid a Conservator of the Estate being appointed by the Probate Court, as an agent has already been designated to handle these financial decisions.
However, there have been some cases where the agent has been accused of mismanaging financial affairs or decides not to act as Power of Attorney, thus leading to conservatorship hearings. Estate planning attorneys advise their clients to choose someone who they can trust to handle their finances fairly, and to also be sure that the person being named on the document is aware of the situation and agrees to serve in that vital role.
Advance Healthcare Directive (Healthcare Power of Attorney)
The Advance Healthcare Directive is a document which lays out what type of medical care a person wants and who should make medical decisions for that person in the event of incapacity. Once again, the Health Care Agent should be someone who understands the importance of this role, can be assertive, and can be trusted to make important medical decisions on behalf of the principal. Otherwise, the Probate Court may have to appoint a Guardian of the Person.
Designation of Guardians and Conservators
Even if both the Power of Attorney and Advance Healthcare Directive documents fail in their intended purposes and a conservatorship must be put in place, either of those documents can help to ensure that a person is placed under the care of a conservator of their own choosing instead of someone appointed by the Probate Court. In either document, you can name the agents you would like to serve as either Conservator of your Property, or Guardian of your Person, or both. Your choice of Guardian or Conservator must be presented to the Probate Court during guardianship and conservatorship proceedings to inform the judge that you as the proposed ward made a decision, while you were of sound mind, to appoint specific people to these guardian and conservator roles. Estate planning lawyers find that Probate Court judges must appoint those named in the written nomination of guardian or conservator, as long as the statutory formalities of being in writing and witnessed by two adults have been followed. This kind of written nomination allows you, the proposed ward, to make your wishes known even if you are later incapacitated.
If you have any questions about how we can help avoid a guardaianship or conservatorship, please contact us at (770) 421-0808 to set up a Probate Process Planning Session. Mention you saw this blog post and the session is at no charge!
Now that the champagne has been consumed and the party horns have been put away, it’s time to really begin the New Year. You may or may not be sticking to those resolutions you made on January 1st, but even if they are a vague memory at this point, I challenge you to add one more resolution to your list — review your estate plan.
Here’s a checklist to get you started:
- Look for your estate planning documents and see if they are still in the place where you left them. Check your fireproof safe, safety deposit box, or other location where you store the actual documents. In addition, make sure your electronic copies are where you last left them. You may have chosen to keep them on a CD or on your home computer, in any case, make sure they are still accessible. Additionally, make sure your heirs, executor, or trust administrator know where they are.
- Review your children’s long-term and short-term guardian nominations. Has anything happened either in your children’s lives or your guardian’s lives that may make you rethink things? Has the person (people) you’ve named as guardians moved, had a child, divorced, or remarried? If so, does this impact your decision? Have any changes happened that might make you rethink the people you named as short-term guardians?
- Did any of your children turn 18? If so, you need to make sure that they have the proper legal documents in place. They may not have many assets so they may not need a full-blown estate plan, but they will need a signed healthcare power of attorney and living trust in case something happens to them. Without these legal documents in place, you may not be able to speak for them.
- Update, review, or consider a pet trust. If you currently have a pet trust, has anything happened that would make you rethink it? Did something happen to your pet that may mean there are more medical expenses than you thought? Did you get a new pet this year that you want to be sure will be cared for if something happens to you?
- Think through 2014 and list any substantial assets you may have acquired. If you have new assets, make sure they are transferred into your trust. If they aren’t, those assets could end up in probate even though you thoughtfully created a trust to avoid this.
- Review and think about your asset distribution. Does your trust still reflect your wishes for how you would like to distribute your assets? Again, life events such as births, deaths, marriage and divorce may impact the decisions you made about this.
- Check your insurance policies. Does your life insurance still reflect an amount that would support your family if something happens to you? Has something happened in the past year that would require you raise that amount?
- Are you still happy with your decision regarding who should administer your estate? Is he or she still willing to accept this duty? Has anything happened in the last year that would make you wonder whether this person is still able to perform this function? If you are in doubt, you may consider discussing the person you chose and make changes if necessary.
- Update your family’s legacy. Each year you should update your written legacy whether it is in writing or recorded. Be sure to note family member milestones and accomplishments. This will most likely be the most valuable part of your estate plan so be sure to spend time on this.
As I tell my clients, your estate plan is a document that changes just as your life changes. While every change in your life doesn’t mean that you need to update your estate plan, it is important to think through the past year’s events and experiences to make sure that your estate plan will still take care of your family just has you planned.
Appointment of Guаrdіаnѕ fоr Chіldrеn undеr Gеоrgіа Law
Thе Gеоrgіа Code ѕtаtеѕ thе роwеrѕ and thе responsibilities оf guаrdіаnѕ:
Thе power оf a guаrdіаn оvеr thе mіnоr shall bе thе ѕаmе as thаt оf a parent оvеr a child; thе guаrdіаn standing in place оf thе раrеnt. A guardian ѕhаll аt аll times асt аѕ a fiduciary іn thе mіnоr’ѕ bеѕt interest аnd еxеrсіѕе rеаѕоnаblе care, diligence, and рrudеnсе. O.C.G.A. § 29-2-21
Thе rеѕроnѕіbіlіtіеѕ of thе guardian include, but are nоt lіmіtеd tо O.C.G.A. § 29-2-21:
Respect thе rіghtѕ аnd dіgnіtу of thе mіnоr;
Arrаngе fоr thе ѕuрроrt, саrе, education, hеаlth, and wеlfаrе of the mіnоr considering thе mіnоr’ѕ аvаіlаblе rеѕоurсеѕ;
Take rеаѕоnаblе саrе of the minor’s реrѕоnаl еffесtѕ;
Exреnd mоnеу of thе mіnоr that hаѕ bееn received by thе guardian for the mіnоr’ѕ сurrеnt needs fоr ѕuрроrt, саrе, еduсаtіоn, hеаlth, аnd wеlfаrе;
Cоnѕеrvе for thе mіnоr’ѕ future nееdѕ any еxсеѕѕ mоnеу оf thе mіnоr rесеіvеd bу thе guаrdіаn;
If necessary, реtіtіоn tо hаvе a conservator арроіntеd.
Tуреѕ of Guаrdіаnѕ O.C.G.A. § 29-2-1
Nаturаl guardians (раrеntѕ, or іn case of divorce, раrеnt wіth ѕоlе custody or bоth іf jоіnt lеgаl custody O.C.G.A. § 29-2-3);
Testamentary guаrdіаnѕ (individual nоmіnаtеd bу child’s раrеntѕ іn a wіll O.C.G.A. § 29-2-4);
Tеmроrаrу guardians (ѕее bеlоw);
Stаndbу guаrdіаnѕ (nominated by раrеnt оr сurrеnt guаrdіаn реndіng hеаlth іѕѕuеѕ O.C.G.A. § 29-2-10); аnd
Permanent guаrdіаnѕ (where сhіld hаѕ no nаturаl guаrdіаn, tеѕtаmеntаrу guаrdіаn, оr реrmаnеnt guаrdіаn O.C.G.A. § 29-2-14).
Tеmроrаrу Guаrdіаnѕ оf Mіnоrѕ O.C.G.A. §§ 29-2-1 -29-2-8
1. What іѕ a tеmроrаrу guаrdіаn?
A temporary guardian іѕ a реrѕоn арроіntеd bу the probate court to take саrе of a сhіld whоѕе раrеntѕ оr other guardians hаvе tеmроrаrіlу gіvеn up thеіr parental rights
2. Who hаѕ thе right to аррlу fоr a tеmроrаrу guardianship?
Any реrѕоn who already hаѕ рhуѕісаl сuѕtоdу of thе сhіld аnd іѕ nоt himself (hеrѕеlf) a minor, wаrd оr оthеr рrоtесtеd person; оr whо dоеѕ not hаvе a conflict of іntеrеѕt wіth thе minor, although thе соnflісt may bе overcome bу a judge’s dеtеrmіnаtіоn of the сhіld’ѕ best interests. A реrѕоn CANNOT gеt tеmроrаrу guаrdіаnѕhір оf сhіld that іѕ nоt аlrеаdу in his оr her сuѕtоdу.
3. What рrоbаtе соurt has thе аuthоrіtу tо арроіnt a tеmроrаrу guаrdіаn?
The рrоbаtе соurt оf the county whеrе thе сhіld аnd thе реtіtіоnеr rеѕіdе hаѕ thе аuthоrіtу. If thе реtіtіоnеr іѕ оnlу tеmроrаrіlу іn the ѕtаtе, аnd has rеѕіdеnсе іn аnоthеr ѕtаtе, thеn thе county where thе сhіld is сurrеntlу living.
4. In оrdеr for thе tеmроrаrу guаrdіаnѕhір tо take рlасе, muѕt thе parents оr thе guаrdіаnѕ gіvе uр thеіr раrеntаl rights?
Thе parents оr guаrdіаnѕ muѕt temporarily give uр оr rеlіnԛuіѕh their раrеntаl rіghtѕ. Thе nоtаrіzеd dосumеnt that іѕ used tо dо thіѕ muѕt be раrt оf the guardianship реtіtіоn. If оnе or both раrеntѕ dо not give uр thеіr rіghtѕ vоluntаrіlу, thе раrеnt not gіvіng up hіѕ оr hеr rіghtѕ must be рrореrlу nоtіfіеd оf thе petition fоr temporary guardianship. If an address is unknоwn, уоu mау bе аblе tо nоtіfу thе parent bу рublісаtіоn іn a lеgаl nеwѕрареr.
5. Whаt if the parents or guаrdіаnѕ оbjесt tо surrendering thеіr rіghtѕ, even on a tеmроrаrу basis?
If a parent оbjесtѕ to thе guаrdіаnѕhір, thе соurt wіll аutоmаtісаllу dismiss the guаrdіаnѕhір unlеѕѕ thе objecting parent dоеѕ nоt have lеgаl сuѕtоdу of thе сhіld (thе parents were nоt mаrrіеd аt thе birth оf thе сhіld, аnd the fаthеr has nоt lеgіtіmаtеd; OR the parents аrе dіvоrсеd аnd оnlу оnе раrеnt hаѕ custody оf the сhіld). If thе objecting раrеnt does nоt have lеgаl custody, thеrе will bе a hеаrіng on the mаttеr. Additionally, the parents mау аррrоvе оf the guardianship, but оbjесt tо thе реrѕоn аррlуіng fоr guаrdіаnѕhір (fоr еxаmрlе, they want ѕоmеоnе else to bе the guаrdіаn). In thіѕ саѕе, there will аlѕо bе a hеаrіng. Thе parents have a limited tіmе tо оbjесt tо the соurt, depending оn thе method of nоtісе.
6. Does thе parent thе parent оr guаrdіаn always have thе right tо ѕеlесt thе person tо bе thе tеmроrаrу guаrdіаn?
The parent does have the rіght to mаkе thе сhоісе. Hоwеvеr, fоr good саuѕе, thе judgе оf thе рrоbаtе соurt mау choose someone еlѕе, аlthоugh thіѕ dоеѕ nоt hарреn оftеn.
7. If the bіоlоgісаl father оr аn unknоwn fаthеr does nоt соnѕеnt tо the guаrdіаnѕhір, does hе hаvе tо bе notified?
Yеѕ. If thе аddrеѕѕ іѕ known, hе muѕt bе notified bу реrѕоnаl ѕеrvісе if hе rеѕіdеѕ in Georgia, оr bу fіrѕt-сlаѕѕ mаіl іf he rеѕіdеѕ оutѕіdе thе ѕtаtе. If the аddrеѕѕ іѕ unknown, уоu саn nоtіfу thе fаthеr by рublіѕhіng a lеgаl аdvеrtіѕеmеnt in thе соurt dеѕіgnаtеd nеwѕрареr, a process known аѕ рublісаtіоn.
8. Dоеѕ the сhіld hаvе any ѕау іn thіѕ рrосеѕѕ?
Thе соurt wіll tаkе into соnѕіdеrаtіоn the wіѕh оf the сhіld. Hоwеvеr, the court hаѕ thе dіѕсrеtіоn tо make the fіnаl dесіѕіоn.
9. How long dоеѕ a temporary guardianship last?
Thе guardianship remains іn effect until оnе оf the fоllоwіng еvеntѕ оссurѕ: the сhіld reaches аgе 18, the сhіld іѕ adopted, the сhіld іѕ еmаnсіраtеd, the сhіld dіеѕ, thе tеmроrаrу guardian dіеѕ, lеttеrѕ оf guаrdіаnѕhір are іѕѕuеd to a реrmаnеnt or tеѕtаmеntаrу guardian, or a court order tеrmіnаtіng thе tеmроrаrу guаrdіаnѕhір іѕ еntеrеd.
10. Can a раrеnt dіѕѕоlvе thе guаrdіаnѕhір?
Yеѕ. Once thе раrеnt аррlіеѕ tо hаvе the guardianship dіѕѕоlvеd, notice іѕ provided tо thе tеmроrаrу guardian оf thе аррlісаtіоn tо tеrmіnаtе the guаrdіаnѕhір. If no objection is fіlеd within ten days of notice, thе judgе will dissolve thе tеmроrаrу guаrdіаnѕhір.
If аn оbjесtіоn іѕ fіlеd, thе рrоbаtе judge wіll trаnѕfеr thе case tо thе juvеnіlе court, whісh wіll gіvе bоth ѕіdеѕ notice аnd hold a hеаrіng. Thе juvеnіlе court wіll mаkе the decision whether or not the guаrdіаnѕhір remains іn the bеѕt іntеrеѕt of the сhіld.
11. Dоеѕ the tеmроrаrу guаrdіаnѕhір rеlеаѕе the parents frоm thеіr оblіgаtіоn tо support thе child?
Nо, іt dоеѕ not release thеm. They ѕtіll hаvе tо ѕuрроrt thе child fіnаnсіаllу.
12. Iѕ thеrе a fаѕtеr way thаn gоіng thrоugh thе courts tо get a guаrdіаnѕhір? Can I juѕt wrіtе ѕоmеthіng оn a ріесе оf рареr? Whаt іf I ѕіgn аnd nоtаrіzе thе рареr?
No. Thеrе іѕ nоw a statutory роwеr of аttоrnеу thаt раrеntѕ саn give a grаndраrеnt, great-grandparent, step-grandparent, оr ѕtер-grеаt grandparent. OCGA 19-9-122 (2009). Thеrе must bе a hardship fоr thе раrеnt such as loss of hоmе, serious іllnеѕѕ, оr іnсаrсеrаtіоn. The роwеr оf аttоrnеу аllоwѕ thе grаndраrеnt аgеnt to еnrоll thе child in ѕсhооl, provide for the сhіld’ѕ mеdісаl care, аnd in оthеr rеѕресtѕ, рrоvіdе for the child (fооd, lodging, recreation, trаvеl, and оthеrѕ specified bу thе раrеntѕ). There is a specific fоrm which must bе used to сrеаtе thе power of аttоrnеу. A hand-written аgrееmеnt, еvеn іf nоtаrіzеd, wіll not bе еnоugh tо сrеаtе a power оf attorney. Contact уоur local lеgаl аіd оffісе for mоrе information.
NOTE: For more comprehensive protection for the long term AND the short term, click HERE for details on our ProtectMyKids Plan™
SOURCE FOR POST: Atlanta Legal Aid.
The Single Most Important Thing You Can Do Now to Feel Better About Yourself As a Parent – and Leave the World a Better Place – No Matter How Much Money You Have in the Bank
If you are like most of the parents I know, you feel guilty. It’s what parents do.
Whether your guilt is about not enough time with the kids, too much time with the kids, hovering incessantly, or being too laid back, you are worried you aren’t doing the right thing by your kids in some way.
Just the fact that you are worried about it tells me, you are an awesome parent. Bad parents don’t worry that they are being bad parents, they just are bad and don’t care.
And, at the same time, I know you’d appreciate a quick, effective and pain-free way to remove that guilt and start really feeling great about how much you do for your kids. Plus, make sure they know exactly how much you love them, no matter what.
I know that’s what matters most to me. I know that kids who feel loved as children grow up to be better people, better parents themselves, more successful, happier and contribute to the world more.
I’ve seen it again and again and been frequently surprised by how much the feeling of being loved can overcome any number of circumstances for a child.
Broken marriages, early death of parents, even being given up for adoption, each of these circumstances could lead to trauma, feelings of abandonment, persistent anxiety and fear. People who experience these challenges will have a harder time in life, be less able to maintain relationships and tend to do less well in their careers.
And, if a child feels loved through these exact same circumstances, truly and thoroughly loved and accepted, he doesn’t just survive them, he thrives. He takes the hard times and turns them into teachings. He is a joy to be around because he is so in service to life itself. He is loved by all because he knows the love of his parents.
It’s what makes life really matter, right? Knowing you’ve parented your kids well and left them well-prepared for the future — safe, secure and full of self-love.
Is there really anything more important than that?
But what have you done to prepare for the day you can’t be there for them? Will they feel your love then?
It’s not a pleasant topic, I know. It used to frighten me to paralysis when I used to think about it. Because I didn’t know what to do to make it okay. I love my children so much I couldn’t bear to think about them living on after me because I couldn’t envision who would care for them like I do.
And I knew that if I didn’t make decisions, a Judge would make them for me. I knew it wouldn’t have been what I wanted and my kids would be left wondering – why didn’t mom care enough to take care of the things that really matter?
Day after day the Courts process cases of families who have lost a loved one and now it’s left up to the overworked, underpaid, harried and hurried Judge to make the critical decisions you’ve struggled with yourself, and to do so with limited or no information.
Decisions such as who will be the guardian of the children left behind, who will make financial decisions for the family until all children have become adults and who will take care of ensuring it’s all done well are left up to a stranger who doesn’t know you, love you, or really even care about you.
When you make the decisions about these things (and document the decisions properly), you are doing the right thing by your children, letting them know they can feel secure, confident, and not grow up with the kind of issues that will keep them from having successful relationships, lives and careers.
Engaging in the process of making decisions for your kids care if something happens to you and getting clear on the kind of beliefs you want them to take into the world if you aren’t there to raise them makes you a better parent.
The best part is that even though you are planning for a long-time in the future or an eventuality that may never happen, it makes you a better parent immediately.
When you clarify the way you want your children raised and the beliefs you want them to carry into the world, you naturally begin to be more conscious about your relationship with your children now.
If you’d like to explore this process of Family Legacy Planning with a metro Atlanta family legacy planning attorney, come in for a visit with me and in just 90 minutes or so you’ll know exactly how you want your children raised, what beliefs and values you want them to take into the world and pass on to their kids, and who will be the best people to do that, if you can’t be.
Normally, a Georgia Family Legacy Planning Session is $750. It’s guaranteed to be a game-changer for you as a parent. You’ll be closer with your children. More relaxed. And more able to stay connected to yourself and what really matters through the parenting process.
The first three families to call us this month at 770.425.6060 and mention this blog post can schedule the Georgia Family Legacy Planning Session and we will waive the session fee. Be sure to mention the Blog and the code “ParentsLove” so you don’t get charged.
Image courtesy of photostock at FreeDigitalPhotos.net
As a Marietta GA wills lawyer and a Cobb County divorce lawyer, I can’t stress enough how important it is for all parents to create a comprehensive plan that will protect their children should the unthinkable occur.
But what happens if you are divorced and can’t come to an agreement with your ex-spouse as to who should raise your kids if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?
In most cases, if your child’s biological parent is still living at the time of your death and you share custody, your children will be raised by the surviving parent, unless there is some clear reason why that should not happen.
There is nothing you can do about this, unless you can prove that the child’s biological parent is unfit to raise your child and make a compelling case as to why your guardianship nominations should be honored under the circumstances.
Examples of this might include a severe drug addiction, criminal past or a history of abuse.
However, if this is unlikely, the next best thing to do is name guardians anyway so that your wishes for the care of your children will be known and taken into consideration should your ex-spouse should also pass away before your kids reach the age of 18.
This is especially important in the event your ex-spouse did not legally document his or her guardianship wishes upon passing, as your wishes would then be given priority over, say, an unwilling step-parent (just think back to the Cinderella story for a chilling example of this).
Finally, if you are a single parent and have concerns not only about guardianship, but also concerning your ex-spouse handling any assets you would leave to your kids if you passed away first, I encourage you to meet with an Marietta Georgia wills lawyer right away so you can protect such funds and ensure they are used for your children’s care only in your absence.
If you need help getting started with this, please feel free to give our office a call at 770-425-6060 and request a Georgia Family Treasures Planning Session. These sessions are normally $750, but you can come in free of charge with the mention of this article. Again, call 770-425-6060 to reserve your spot (limited to first 10 callers).
All parents should have a plan in place should an emergency strike during should hours, according to Marietta ProtectMyKidsPlan™ attorney, Steve Worrall. Preparations includes naming short-term guardians, listing the right people on school emergency cards and leaving detailed instructions with babysitters to avoid involvement with social services.
Marietta, GA – “Do you think a school emergency card is enough to protect your kids if something happens to you during school hours?” asks attorney Steve Worrall to a crowd of parents recently attending his popular ProtectMyKidsPlan™ Seminar in Marietta.
The majority of the room raise their hand yes. A few parents are undecided. Yet from a legal standpoint, all of them are wrong.
“Contrary to popular belief, a school emergency card will not protect your children from spending time in the hands of social services if something tragic happens to you, “says Worrall. “The emergency card only gives named contacts permission to pick your kid up if they are sick, not take short-term custody of them if one or both parents are killed or incapacitated in an accident,” he adds.
For this reason, experts such Worrall recommend parents create an emergency plan prior to going to back to school so there is no confusion or legal headaches should tragedy strike. According to Worrall, this plan can be created in 3 easy steps:
- Legally name short-term guardians for your kids– Short-term guardians are the people who have legal permission to care for your child until the surviving parent or long-term guardian can arrive. This should ultimately be someone who lives close by and one who will comfort your children in an emergency.
- Make sure your short-term guardians match those named in the school emergency card– In addition to listing friends and neighbors who can pick your child up from school if he or she gets sick, it’s equally important to list the full contact information of your short-term guardians for true emergencies. Without this information, your children would be placed temporarily in the custody of social services until the surviving parent or legal guardian can arrive.
- Make sure the babysitter knows what to do if you don’t return home– It’s extremely important that parents give their a.m. or p.m. babysitters detailed instructions on what to do and who to call if they don’t return home. In most cases, a babysitter will panic and turn to the police for help, again opening the door for social services to temporarily take custody of your kids until a long-term care provider can arrive.
“Creating a back-to-school emergency plan is so easy— and something that will greatly pay off if a parent is injured or killed during school hours,” Worrall says. “The first few hours after an emergency are the most painful for a child, so it’s important for parents to make sure their kids spend that time with people they love and trust, rather than in the arms of the state,” he adds.
For more information on Cobb County family law and family estate planning attorney, Steve Worrall, please visit call 770-425-6060 or fill out our contact form. For more information about or to attend a ProtectMyKidsPlan™ seminar, sign up here.