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!
When we think of guardianship, most of us think of who to name as legal guardians for our children. You know, just in case.
It’s hard to imagine Mom or Dad needing a legal guardian.
Something about that concept just doesn’t fit into what most of us see as the natural order of life.
Mom and Dad have always been there to take care of us. Why would either of them ever need a legal guardian?
As our population ages and we live longer than ever before in history, our parents needing a legal guardian is a harsh reality that many of us will eventually face.
As the body ages, the mind also loses its ability to function clearly. For that reason, laws have been established to allow incapacitated people to have guardians appointed to help them with making decisions and taking care of their affairs.
Here are a few things you need to know about the guardianship process:
First, let’s determine what an “incapacitated person” is.
This simply means an adult whose ability to receive and evaluate information effectively and communicate decisions is impaired to the degree that this person is unable to manage his or her financial resources, or meet essential requirements for his or her own personal safety and health. This definition is sort of a “catch all”. Each state has its own criteria for deciding if a person is incapacitated, so call us to find out what the requirements are in Georgia.
Second, recognize that having guardianship established for an adult is not an easy thing to do. You can’t simply fill out a form and be appointed. A petition has to be filed with the probate court. Unless you’re very well versed in dealing with the ins and outs of the legal system, you will definitely need a Georgia probate and adult guardianship attorney to prepare the petition and shepherd it through the process.
Third, there are different types of guardianship in Georgia. You can be named guardian of a person or of an estate. You can even apply for a limited guardianship to handle only certain aspects of the person’s affairs.
Regardless of the type of guardianship applied for, the court will consider several issues in granting or denying guardianship:
• The nature of the condition or disability affecting your loved one;
• The ability or inability of your loved one to make and communicate decisions;
• Whether your loved one really needs a guardian and the availability of family, friends or other support systems to help them in making decisions;
• Whether or not your loved one has a Durable Power of Attorney or a trust established that sets forth decisionmaking powers in these instances;
• The type of guardian your loved one actually needs based on their current condition;
• How long the guardianship is anticipated to last.
Rest assured that the probate court in Georgia will not simply take your word for it that Mom or Dad needs a guardian. Extensive legally sufficient proof will be required. You will more than likely need legal assistance to make sure that you are meeting the court’s requirements. Give us a call to talk about what you will actually need to do to provide the kind of proof the court needs.
Finally, a good Power of Attorney may very well eliminate the need for a guardianship. It’s much easier to prepare a Power of Attorney while your loved one is still competent than to wait and be forced to have a loved one declared incompetent for their own protection.
Are you beginning to worry that Mom or Dad may not be able to make sound decisions? Would you like more information from a Georgia estate planning attorney on exactly what the requirements for incapacity are in the State of Georgia?
Call us to schedule your Georgia Family Treasures Planning Session today. We can identify what needs to be done to ensure whether your parents have the right plan in place, or help you plan your own estate to save your loved ones from the hassle of dealing with a competency finding in a Georgia Probate Court when you can no longer take care of your own affairs. Our Georgia Family Treasures Planning Session is normally $750, but this month I’ve made space for the next two people who mention this article to have a complete planning session with me at no charge. Call us, your Marietta and Atlanta Georgia estate planning attorneys, today at 770-425-6060 and mention this article.