Guardianship in Georgia: Guardians of the Property (Conservators)

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