Georgia Probate BlogNews and Thoughts on Issues in Georgia Regarding Probate of Wills and Administration of Intestate Estates, Guardianships of Children and Incapacitated Adults, Will Contests and Probate Litigation and More by Georgia Probate Lawyer, Steve Worrall
In Georgia, the Probate Courts may grant guardianship of the person and/or property of an adult resident of the state (or one located in this state) who, because of physical or mental illness or disability, detention by a foreign power, or other just cause, lacks sufficient understanding or capacity to make significant responsible decisions concerning his person (or is incapable of communicating those decisions) AND/OR is incapable of managing his estate or property which is likely to be wasted or dissipated unless proper management is provided.
The petition seeking guardianship of the person or property of an alleged incapacitated adult is filed either by two individuals having knowledge of the pertinent facts or by one such individual together with the affidavit of a physician or psychologist who has examined the proposed ward. Notice is to be given to the ward’s spouse and all living adult children, if any. If there is no spouse or adult children, or the addresses are unknown, the notice is given to the two known next of kin or, if none, then to two known adult friends of the proposed ward. Notice is, of course, also given to the proposed ward, who has a right to be represented by counsel. The Court will appoint an attorney for the ward if the ward does not employ counsel. An evaluation of the proposed ward is performed by a physician or psychologist, who must file a written report of the evaluation with the Court. Unless the petition is earlier dismissed by the Court, a final hearing is held and a decision made on the petition.
The Probate Court has the authority, if the petition is granted, to restrict or revoke certain rights or powers of the ward, including: the power to contract marriage; the power to make contracts; the power to consent to medical treatment; the power to establish a residence or place of abode; the power to bring or defend any action at law or equity (except an action related to guardianship) except through guardian ad litem; then power to buy, sell or otherwise dispose of real, personal or trust property; and the power to enter into any business or commercial transaction. Upon specific determination by the Court, the ward’s right to vote and power to make a will may also be revoked, and the Court may, as appropriate to the circumstances of each case, revoke any other rights or privileges of the ward, including the privilege to operate a motor vehicle. Except for the right to vote, the power to contract marriage, and the power to make a will, and except to the extent otherwise limited by the Court’s order, the guardian generally succeeds to the rights of the ward which have been revoked by the Court.
Guardianship may be granted for the person and/or over the property of the incapacitated adult, and the guardian of the person need not be the same person as the guardian of the property. The respective responsibilities of the guardian of the person and the guardian of the property are more fully explained under General Information.
While many, if not most, adult guardianships are permanent, they may be granted by the Court for a limited time. If the Court’s order sets a time limit on the existence of the guardianship, it will terminate at the time set by the Court. The guardianship will also terminate, by operation of law, upon the death of the ward, EXCEPT that the guardian of the property is charged with the responsibility, as ex-officio administrator, to proceed to distribute the estate of an intestate (no will) deceased ward, and the proceedings will remain open for that purpose.
SOURCE: Catoosa County Probate Court
In situations or circumstances which pose an immediate danger to the ward or to the ward’s estate, an emergency guardian may be appointed by the Court. Emergency guardians may do only those things which may be reasonably necessary to protect the ward or his estate from the described danger, and the powers and duties of the emergency guardian are generally specified in the Court’s order. Unless an earlier termination date is set in the Court’s order or unless the proceeding is converted to permanent guardianship proceedings, the emergency guardianship terminates in 45 days from the date of the order.
SOURCE: Catoosa County Probate Court
A guardian of the property (now called “Conservators”) of another has the duty to exercise ordinary diligence in dealing with the ward’s property and may be held liable for any loss resulting from a lack of such diligence. A guardian of the property has the duty to collect and preserve the assets of the ward. Except as limited by law or the Court’s order, a guardian of the property has control and authority over all property (real, personal and intangible) of the ward and succeeds to all property and contract rights removed from and not reserved to the ward.
All funds and property of the ward must be maintained, preserved, expended and used for the benefit of the ward and those who may be legally dependent upon the ward. The ward’s estate should be utilized to feed, clothe, house, educate and care for the ward and his lawful dependents in the standard to which the ward and his dependents are accustomed, to the extent of and as may be limited by the ward’s resources. Utilization of the ward’s estate for his dependents should be after taking into account all other income of or support for the dependents. Utilization of the ward’s estate for his own benefit should take into account all income and support of the ward and the expected duration of the guardianship. While preservation of the ward’s estate for his heirs at law should not be of primary concern for the guardian, preservation and utilization of the estate over the expected duration of the guardianship is important and should be given due consideration by the guardian. On the other hand, the guardian should not waste the assets of the estate or expend it exorbitantly or above the usual standard of the ward simply to avoid preservation for the heirs or those who may be beneficiaries of a will of the ward.
It is the duty and responsibility of the guardian of the property to properly manage and invest the ward’s estate, and all funds of the estate must be properly invested so as to earn reasonable income for the ward. The guardian is required to invest funds of the estate in a manner approved by Georgia law as a “legal investment,” unless otherwise authorized by law or court order; otherwise, the guardian may be held liable for any loss suffered by the ward or the ward’s estate on account of any unauthorized investment. A guardian will not be held liable for any loss suffered in a legal investment, absent gross negligence or fraud. On the other hand, a guardian is given specific authority to maintain investments which were made by the ward prior to the appointment of the guardian.
Non-cash assets of the ward must also be properly managed and protected for the benefit of the ward. If an asset is reasonably capable of earning income, it must be dedicated to that purpose unless there is a compelling reason otherwise. Non-income-producing assets should be preserved and protected or liquidated (after proper authority is granted), as may be appropriate under the circumstances.
A guardian of the property does NOT have authority to sell, convey, transfer, mortgage, pledge or give away property of the ward without an order from the Court. The Court may, upon the application of the guardian and after appropriate notice is given as required by law, grant the guardian such authority if the proposed transaction is considered by the Court to be appropriate and proper. Generally, the assets of the ward are to be preserved for the ward’s use and benefit, and sales of property of the ward are usually permitted only when necessary to provide for the care and support of the ward (and/or those dependent upon the ward) or when preservation of the asset is burdensome to the estate. The Court may, as appropriate, grant authority to the guardian to sell the asset at a public sale (a legal auction) or at a private sale under a specific contract. Sales of perishable items or items which may rapidly decline in value may be authorized more quickly than other sales, and sales of listed or registered stocks may be authorized at published prices on a particular future date.
All property of the ward titled or registered in the name of the guardian must be titled or registered in the fiduciary capacity of the guardian (i.e., as a guardian) and not in the guardian’s name alone. Typically, the title, account or deed will be registered as “John Doe, as Guardian of the property of Richard Roe,” although any variation which clearly shows the fiduciary nature of the registration for the benefit of the named ward may be accepted and approved by the Court. Bank accounts should be especially so clearly designated, so as to avoid unintentional co-mingling of funds or attachment for debts of the guardian, and theward’s Social Security number should be provided to the Bank for the reporting of interest income and other matters to the Internal Revenue Service. Tangible items and personal property of the ward should be maintained and protected by the guardian and not be so co-mingled with personality of the guardian as to lose its identity as the ward’s property. A guardian has no authority, absent the Court’s approval, to use property of the ward in such a manner as to dissipate, depreciate, waste or consume it or otherwise use it for the guardian’s own benefit.
A guardian of the property of another has the responsibility of filing, on behalf of the ward, all federal and state income tax returns which might be required from the ward. Ad valorem and intangibles tax returns in Georgia and any other states in which the ward has property also must be filed by the guardian of the property.
SOURCE: Catoosa County Probate Court
A guardian of the person of another has those rights and powers reasonably necessary to provide adequately for the support, care, education and well-being of the ward. A guardian of the person is much like the parent of a child who has both the authority and the responsibility of making decisions for the child. This may mean that a guardian must make a decision which is considered to be in the ward’s best interest even if the ward voices an objection, much like a parent requiring a child to attend school or receive medical treatment. It is also the guardian’s duty to assist the ward in improving and developing any talents, skills or abilities the ward may have and to help the ward gain and maintain self-confidence and as much independence as may be appropriate to each circumstance. It is also the guardian’s responsibility to preserve and protect, to the extent possible under the circumstances, the dignity of the ward.
A guardian of the person is entitled to custody of the ward and may establish the ward’s residence, consistent with the terms of any restrictions or directions from the Court. The guardian is required to make arrangements, from funds available from the ward’s estate or other sources, to support the ward in the least restrictive environment, according to the needs and resources of the ward. The guardian may also participate in legal proceedings in the name of the ward and for the ward’s benefit. A guardian must be reasonably accessible to and maintain regular contact with the ward, should be friendly, courteous and tactful toward the ward at all times, and must respect and protect the individual rights and dignity of the ward. The Court’s order may limit or remove from the ward certain rights or may reserve to the ward certain rights, and the authority of the guardian will be governed by the Court’s order. Unless otherwise directed by the Court, the guardian will succeed to the rights removed from the ward, except that a guardian may not exercise the right to vote if removed from the ward.
Guardians of the person are, unless otherwise directed by the Court, required to periodically file with the Court written reports on the ward’s general condition, living circumstances, progress and development, and needs, and the guardian may also make recommendations to the Court concerning the ward or the ward’s needs. These reports are called Personal Status Reports and are covered more fully under the section on “Reporting Requirements.” It is also the guardian’s responsibility to keep the Court fully informed on the whereabouts of the guardian and ward, and the guardian must report to the Court any change in the address and telephone number of the guardian and his ward.
SOURCE: Catoosa County Probate Court
Guardianship is a legal relationship between the guardian and ward, much like that of an agent or attorney-in-fact, that is created by Order of a court with proper jurisdiction. In Georgia, the Probate Courts have exclusive jurisdiction over the appointment of guardians for minors and incapacitated adults. Guardianship may be created for the person of the ward, for the property of the ward, or for both. Guardianship of the person of a minor child does differ from custody of a minor child, which may be awarded only by Superior or Juvenile Courts, and a Probate Court is without authority to grant guardianship of the person of a minor child with a living parent to anyone other than the parent(s) without the consent of or notice to each living parent. The guardian of the person need not be the same person as the guardian of the property, although one person may certainly serve as both. There may be two or more guardians, who would be referred to as co-guardians.
When an Order has been issued appointing a guardian, Letters of Guardianship are issued by the Court to the person appointed. The Letters of Guardianship serve to evidence that the guardian has authority over the person or property (or both) of the ward. The guardian is first required to take and sign an oath that the guardian will comply with all of the requirements of Georgia law applicable to guardians.
In addition, every guardian of the property of another is required to post a surety bond with the Court, in such amount as may be set by the Court, to secure the faithful performance of the guardian’s duties and responsibilities. The bond is, in effect, an insurance policy against any misappropriation or mismanagement of the ward’s property by the guardian. Although the bond may be personally endorsed by someone owning sufficient equity in real estate to cover the amount of the bond, most bonds are endorsed by commercial bonding companies. Non-commercial bonds are generally required in twice the amount of the bond, while corporate surety bonds may be in an amount equal to the bond amount. Probate Courts generally prefer, and often require, the use of corporate sureties on bonds. The premium for the bond is, as will also be shown under the section on “Commissions and Expenses,” payable from the ward’s estate as an expense of administration, and there is no requirement that the guardian bear this expense personally.
A guardian of the person or property of another owes a duty of undivided loyalty to the ward and must act in the best interests of the ward and the ward’s property. Guardians should always avoid even the appearance of a conflict of interest in management of the ward’s property and/or in decisions about the ward’s person. Self-dealing (that is buying of property from or selling of property to the ward by the guardian) is inherently suspicious and must be closely scrutinized by the Court. It should, therefore, be avoided except in unusual circumstances. Additionally, any expenditure which appears to or does benefit another, especially the guardian, more than the ward will be subject to scrutiny by the Court.
SOURCE: Catoosa County Probate Court
Year’s Support Award
Despite its misleading name, a year’s support award is a permanent award of property from a decedent’s estate to the decedent’s surviving spouse, surviving minor children, or both. The surviving spouse of the decedent can apply for year’s support unless he or she has remarried after the decedent’s death. The decedent’s minor child(ren) may apply for year’s support if the following conditions are met:
- A child must be under age 18
- The child must not be married
- The child must be the child of the decedent (this includes adopted children or children born out of wedlock but does not include stepchildren of the decedent)
A minor child’s parent, legal guardian, or guardian ad litem may file on behalf of the child. In most cases, year’s support may be granted whether or not the decedent had a will.
Filing for Year’s Support
In order to receive year’s support, the spouse or children must file a petition within 24 months of the day that the decedent died. The petitioner should use Standard Form 10: Petition for Year’s Support. The standard forms are available at the courthouse or online at the official statewide Probate Court website. This petition must be filed in the probate court of the county in which the decedent was domiciled at death.
After the petition is filed, the probate court will publish notice of the filing of the petition in the county newspaper. The court will also mail a copy of the petition to certain interested parties identified in the petition. If any of these persons are minors or incapacitated adults, the court will appoint a guardian ad litem.
If any objections to the petition are filed, the probate court will hold a hearing to determine how much property, if any, will be awarded as year’s support. If no objection is filed, the probate court will award the property requested in the petition. The probate court may make separate awards of property to the surviving spouse and to the minor children.