The Georgia Code for Guardianship and Conservatorship became effective in July 2005. Since that date, attorneys who practice in this area have learned many tricks of the trade. I’ve studied the guardianship code, and I’ve even taught classes about the basics of guardianships and conservatorships.
Yet, the best techniques to guarantee your client’s success have very little to do with the code. Rather, these techniques take advantage of gaps in the code and the unique status individuals with incapacity have in our legal system. On one hand, an individual with incapacity (such as dementia or autism) is legally an adult and deemed capable of making her own decisions.
On the other hand, these individuals are often unable to oversee their care and call for help; they are at the mercy of their caregivers.
This dual status as an individual with an incapacity but legal capacity helps foster the strategies outlined below.
For purposes of this article, we will review the typical scenario of Mom who has two children, Brother and Sister. Brother has been Mom’s primary caregiver.
You, Sister, have had a poor relationship with your mother in the past but would like to take charge of her affairs in light of her deteriorating capacity. What are your options?
1. Possession is 9/10 of the law. If you want to succeed in a guardianship matter, you must have physical possession of your Mother and keep others from having access. This is the key to any successful guardianship defense. Keep everyone else away from Mom and make her dependent on you for all aspects of her care. Eventually, she will realize how close you have become and enjoy overseeing her care.
There are several effective methods to gain possession of Mother. The easiest is to offer to take Mom for respite (Brother will be grateful for the unexpected break), and don’t bring her back. Instead, set her up in your house or another residence, and don’t tell anyone where she is. As long as you know where she is, she is not a missing person. Also, don’t allow any friends or family to the house unless you consider them friendly to your cause. If APS comes to the house, you can refuse the caseworker entry. If the police come to the house for a welfare check, refuse the office entry too. In some counties, the police will simply leave without asking to see Mom. Or tell the officer that Mom is sleeping and can’t be disturbed. If Brother comes to the house, have him removed by the police and with a warning that, if he returns, you will have a criminal trespass warrant issued against him.
1a. One catch to this provision is that you cannot put your mother into any type of personal care home, assisted living facility, or nursing home. These facilities are protected by state and federal patient bill of rights that require the facility to allow your mother to see anyone she chooses. You need to be willing to meet all of Mom’s care needs, from changing her adult diapers to supervising her showers, but certainly the care you will provide will be superior to anything she can receive from any third party.
The good news is that you can hire caregivers to care for your mother, and your mother will foot the bill for her care. Make sure that you hire private caregivers; CNAs and other caregivers provided by agencies are mandated reporters to the state, and they may file a report on an activity that they don’t like. You can hire anyone you want for this position neighbors, friends of friends of the families and you don’t need to perform any background checks to see whether the individuals have had any financial problems or are able to provide basic first aid.
1b. One other point must be mentioned, even though it goes without saying you actually must care for your mother. You don’t need to take her out of the house to visit anyone, but you do need to make sure she eats three meals a day, that she sees doctors for her medical conditions (at least for her most serious ones), and that the house is in reasonably good shape. If you don’t provide her with nutrition, hydration and medical care, you will be at risk for committing a felony and give Brother cause to become your mother’s guardian. And you don’t have to provide your mother with the best care possible; you only need to provide her with reasonable care.
You also need to use your mother’s money to provide her with toiletries and to maintain the house. You may want to add some features to the house to make it more comfortable for her to get around, such as grab bars in the bathroom, but you may not want to add ramps or any other feature that will allow her easier access to the outside. Also, make sure she has her own phone so that no one can say you are denying her the ability to call whomever she wants. Cell phones are the phone of choice since they can be lost and can be difficult for people with dementia to use. And it is not unreasonable for your mother to buy you gifts in exchange for the care you provide a small vacation perhaps as long as her needs are being met generally and during your absence. Or maybe she is willing the treat the two of you to a vacation to the destination of your choice.
2. Take Mom out of state. Leaving the state raises a pesky venue problem for Brother to overcome. Under Georgia law, for purposes of determining an individual’s domicile at the time of her death, an individual without capacity cannot relinquish residency or domicile simply by leaving the state. Thus, an incapacitated individual who moves from Georgia to Florida remains a Georgia resident. Presumably, this is true with guardianship as well. However, any guardianship that Brother files in Georgia is likely to fail. Why? For a guardianship in Georgia to succeed, the proposed ward must undergo a court ordered evaluation. Many counties have trouble finding someone to conduct an evaluation within the time required by statute (especially in an emergency guardianship/conservatorship situation). Now the court has to find someone willing to conduct the court appointed evaluation in Texas or Ohio. It won’t be your responsibility to find the court appointed evaluator; that will fall to the court or to Brother’s attorney. I’m sure your Brother won’t mind incurring the additional expense.
Of course, Bob could try to file for guardianship in Texas or Ohio or wherever you took Mom, but there is the argument that Mom’s residence is still in Georgia because she lacks capacity to change her residence. The out of state maneuver is a win win.
There is one caveat of which you should be aware before leaving the state. Mom needs to be happy to be with you. If you have moved Mom to Texas with you, and a police officer asks Mom where she would like to live, and Mom says that she wants to return to Georgia, then she is going to be removed to Georgia. Ironically, if Mom is with Brother in Georgia and she tells a police officer that she wants to live with you in Texas, no one will put Mom on a plane and take her to Texas. You will need to come to Georgia and take her back to Texas will you.
3. Change powers of attorneys. Once Mom is comfortable in her new environment, take Mom to an attorney to make sure that Mom designates you as agent. At the very least, she should revoke her Advance Directive for Health Care (ADHC); in Georgia, someone with an incapacity can validly revoke the ADHC. Brother may want to argue that the new power of attorney or ADHC is invalid, but probate court has no jurisdiction to determine the validity of these documents. These documents are simply contracts, and your brother will have to file suit in Superior Court to challenge whether your mother had capacity to create them in the first place.
4. Litigate. Guardianship litigation is great for a variety of reasons.
4a. You get a free attorney. Under the Guardianship code, Mom can get a court appointed attorney to represent her interests. If properly played, this attorney works for your interest. The court appointed attorney rarely takes the time to meet with Mom. She might meet Mom the day of the hearing. Or she might even waive Mom’s appearance at the hearing altogether without ever meeting with Mom to find out what Mom wants, if anything. I was recently involved in an emergency guardianship where the court appointed attorney filed a motion to dismiss the guardianship petition without ever meeting with her client to find out what she wanted, and she waived her client’s appearance at the hearing. Additionally, the court appointed attorney will look at the recent powers of attorney, assume they are valid, and argue to the court that her client clearly stated that she wants you, not brother, to serve as her guardian and conservator.
4b. Mediate. From my experience, many probate courts would like nothing more than to see guardianship disputes resolved outside their courtrooms. The level of animosity between parties in a guardianship is legendary. I’ve seen seasoned criminal law attorneys run from guardianships after accepting representation in one case. The reality is that, if the parties wanted to work together for Mom’s benefit, they would. They are in guardianship litigation because they can’t or won’t work together, and the reasons they won’t work together has very little to do with Mom’s care.
There is some debate as to how much can actually be resolved in mediation. Probate court is a court of limited jurisdiction, meaning that it can address certain issues (e.g., who can be guardian) but not other issues that might be addressed by a comprehensive mediation settlement (e.g., obtaining information about Mom’s trust). Because the court lacks jurisdiction over certain issues addressed by the mediation, the court may decide not to include the settlement agreement as part of its final order. Thus, your goal in the mediation is to become guardian and conservator. As long as the settlement agreement is not incorporated into the order, it is not enforceable in that probate court. If you choose not to abide by the agreement, you will not be held in contempt of court. Sure, Brother can sue you for breach of contract in State or Superior court. He will only be entitled to the monetary value of your breach and maybe specific performance. Additionally, without a specific tort, Brother cannot get punitive damages or intentional infliction of emotional distress. And you will be able to continue providing Mom with care without Brother’s visitation or input for an unknown number of years until the case finally comes to trial. Ultimately, your Brother may have to abandon his case for lack of funds, and you will be able to provide your Mom with her care the remainder of her life.
5. Create a revocable trust then invoke incapacity provisions. Trusts are a great way to keep control of Mom’s assets. I recommend that you have a trust created at the time you take your mother to update her power of attorneys. Both creating a trust and creating a power of attorney require the same capacity to contract. Thus, if she has capacity to update her power of attorney, she has the capacity to create a trust. There are a few provisions that you want to incorporate into the trust:
5a. Be sure that you are named co-trustee at the time the trust is created so that you can help your mother manage the trust funds. You also want the ability to manage the trust without her if she is declared to be incapacitated. Then, within a few months after the trust is funded, take Mom for an evaluation to determine whether she has the capacity to manage her financial affairs. If she does not pass the evaluation, invoke the incapacity provisions, and become the sole trustee.
5b. Put a very strong no‐contest clause in the trust to discourage family members from challenging the trust. In fact, draft the trust so that the only person with a clear right to challenge the trust is the grantor. If the grantor has an incapacity, she cannot challenge the trust. Also, with a trust in place, Mom’s assets are presumed to be safe, so it is not likely that a probate court will find a need for a conservator unless Brother can show abuse of the trust. But that will be difficult since.
5c. Make sure that the only person who is entitled to see an accounting of trust assets are the grantor (Mom), the grantor’s agent under a power of attorney (you), or other income beneficiary. Brother can’t prove abuse if he can’t access the files. Besides, you’re probably not mismanaging the funds. It’s really none of his business as to how you manage the funds.
5d. Here’s the best part of Brother filing litigation alleging mismanagement of the trust it doesn’t cost you a dime. After obtaining a conservatorship in Probate Court, he now has to spend more of his personal funds to file protracted fiduciary litigation in Superior Court. While he was reimbursed from Mom’s estate for the conservatorship, there is no guarantee he will receive attorney’s fees from the trust for this litigation. And, as trustee defending the trust, the trust will pay your attorney’s fees and expenses.
5e. Make sure the distribution of the trust mimics what Mom put in her most recent will. First, since Brother stands to get an inheritance from the trust, he may be less likely to file a complaint about your management of the trust since, if he doesn’t win, he doesn’t get an inheritance. Second, if Brother was to get an inheritance under Mom’s will but is effectively disinherited by the trust provisions, you may be exposed to a lawsuit for the intentional interference with an expected inheritance.
As mentioned above, you still need to use the funds of the trust for your mother’s care. You also need to be judicious in your management of the trust funds. Trustees have been successfully sued for the improper dissipation of trust funds. Keep records and show consistency in the expenditures. You can pay yourself a reasonable fee for the management of the funds.
The purpose of this article is not to show you how to abuse your mother. It highlights the problems with the current guardianship system. Individuals in a contested guardianship matter need competent legal counsel to protect their rights and the rights of their vulnerable family members.