On January 1, probate courts in Georgia gained an expanded focus that will benefit anyone seeking to care for a family member with a trust. Before January 1, 2021, if a matter appeared before the probate court that involved issues concerning the management of a ward’s property in and outside a trust, the probate court could only resolve those issues involving the property held by the ward. Any issues concerning the trust had to be heard by a superior court. Because of these limitations, probate courts also lacked the authority to enforce a settlement agreement designed to address both problems with a trust and with the management of a ward’s estate. This two-court requirement generated significant additional expense for litigants and prevented the attorneys from creating a comprehensive solution to complex matters. As a result of recent legislation (House Bill 865), probate courts in larger counties now have jurisdiction to make decisions about trusts held by a proposed ward.
Consider the family that becomes divided when one adult child believes that another adult child is exploiting a parent. That financial exploitation does not just involve the bank accounts used to pay for that parent’s daily expenses. It also involves the funds placed in trust, and the exploiting child controls the funds as the trustee of that trust. The adult child wants to take control of that parent’s assets to protect the parent from additional exploitation. Until January 1, that adult had to file a petition for conservatorship in a probate court and a separate petition to remove a trustee in a superior court. This two-court process effectively doubles a client’s expense to prosecute the litigation and protect. The ultimate irony to this second litigation is that the superior court judges often ask probate court judges to serve as specially-appointed judges on these trust matters because their special knowledge of this area of law.
By handling these elder care matters in probate courts, which are organizationally smaller and often more efficient than their superior court counterparts, a single judge has the ability to make a decision based on all of the issues of the dispute. As a result, the probate court should be able to resolve disputes more efficiently and create more holistic solutions to the problems.
For years, I have advocated for giving the probate court jurisdiction to hear both conservatorships and related trust matters. As excited as I am about this legislation, this area still has several challenges. First, under the Georgia Constitution, matters concerning trust law generally fall under the jurisdiction of the Superior Courts. Although the legislation was thoughtfully drafted, the question arises whether this new statute will survive a constitutional challenge.
A second issue concerns the limitation of this change to Article VI courts, which are courts in counties with populations greater than 90,000 people. Probate court judges in Article VI courts must be attorneys. This is not true for counties with smaller populations. Currently only 25 of Georgia’s 159 counties are Article VI courts, which means that the overwhelming majority of probate court judges in the State of Georgia do not require a legal degree. Thus, individuals who live in rural communities still have the financial burden of having to prosecute one matter in two courts, neither of which has the ability to create a solution addressing all of the issues raised by a matter.
I am not sure as to the best way to create this change in non-Article VI probate courts. One fundamental question that needs resolution is whether a probate court judge who has no formal legal training is qualified to resolve matters involving trust law. Trust law can be quite technical, and it bleeds into other areas of law, including, for example, real estate law when a trust owns real property. Likewise, guardianship and conservatorship law can also be quite technical, and non-Article VI probate courts handle areas of law not addressed by Article VI courts, including certain criminal matters. Can a judge who has no formal legal training receive adequate training to resolve trust matters?
If the answer is that a Probate court judge must be an attorney because of the increasing complexity of legal matters, the next issue that arises is how to handle this requirement in non-Article VI court. Many of Georgia’s rural counties are “legal deserts” with few practicing attorneys, so finding a licensed attorney to fill this role may not even be possible in certain counties.
Another option exists which avoids constitutional constraints by granting the superior courts jurisdiction to manage both the conservatorship and trust issues. While the Georgia constitution grants superior courts exclusive jurisdiction over trust matters, statutes grant the probate court exclusive jurisdiction of guardianship and conservatorship matters. Legislation can create a specialized protective proceedings court that would have jurisdiction to hear legislation, guardianship, conservatorship, and trust matters, much like legislation grants special jurisdiction to specialized business courts and mental health courts. Of course, this legislative option has its downside as well. The issues seen in a conservatorship context can reappear once the person under the conservatorship dies. If the entire proceeding is managed by one probate court, the probate court has the history of the matter and can efficiently resolve these recurring issues. By moving the conservatorship to a separate court, the family again finds itself having to relive these problems in a second court.
Although the January 1, 2021 legislation leaves certain issues unresolved, as an attorney who has dedicated my practice to helping protect seniors and other vulnerable populations, I am delighted to see this important change to probate court jurisdiction. Consolidating related issues in one court case will allow judges and attorneys to craft more thoughtful and comprehensive outcomes at a lower cost, which is a better result for my clients and for the loved ones they are trying to protect.
To learn more about guardianship and conservatorship in Georgia, see my earlier posts: “The Top Five Secret (and Abhorrent Tricks) to Winning a Guardianship and Conservatorship” and “What To Do When It All Goes Wrong.” If you want to schedule an appointment to speak with me about this article or other elder care disputes, please contact Cheryl Hess at Cheryl@WeinbergElderLaw.com or 404-969-5648, ext. 102.