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A family with their elderly parent

A Reminder From the Court of Appeals to Honor the Proposed Ward’s Written Wishes

My clients and I have been discouraged by a practice adopted by certain probate courts in contested guardianship matters. Frustrated by family members (typically siblings) fighting over who should care for a parent, some probate courts are quick to appoint a public guardian or county conservator as the guardian or conservator for the proposed ward in contested matters. Often these adults become wards of the county even though that adult nominated a guardian in their advance directive for health care and a conservator in their financial power of attorney.

As attorneys, we know which courts are going to cause the proposed wards to become wards of the county. I hate having to counsel clients during our first meeting that, even though they were nominated by their parent to serve as guardian or conservator, they are going to lose this contested case; the court will appoint a public guardian and county conservator to oversee their parent’s care and finances irrespective of what their parent wanted. 1

Under Georgia law, a probate court must give preference to the individuals nominated by a proposed ward in their powers of attorney or other documents. If there is no document, then the courts are supposed to select individuals according to a statutory preference – the proposed ward’s spouse, adult children, parents, etc. As a matter of last resort, if no one else is able to serve, then the court should appoint the Public Guardianship department of the Department of Human Services to serve as guardian and the County Conservator to serve as conservator.

Although probate courts are supposed to honor the wishes of the proposed ward, sometimes the proposed ward has nominated a “bad actor” to serve as their fiduciary. For example, sometimes a parent will nominate an adult child to serve as a conservator unaware that the adult child has been stealing money from that parent. Sometimes the “bad actor” had the parent, now suffering from severe dementia, sign a new power of attorney nominating the bad actor to serve as guardian and conservator. In these situations, the probate court may find there is “good cause” for not honoring the proposed ward’s request and appoint someone else to serve as conservator. When appointing someone who was not nominated, the probate court must explain in the order why it selected someone else to serve.

The Georgia Court of Appeals had the opportunity to address this issue of “good cause” in its recent opinion, In re Estate of Jenkins, A22A1713 (Ga. Ct. App. Feb 2, 2023). In a 2016 Advance Directive for Health Care, Mr. Jenkins had nominated his wife (“Wife”) to serve as his guardian in the event he required one. A long-time alcoholic, Mr. Jenkins developed alcohol-related dementia, and his Wife petitioned the court to become his guardian, as Mr. Jenkins had desired. After a two-day hearing, the court-appointed Mr. Jenkins’ son, Wesley, to serve as Mr. Jenkins’ guardian and conservator.

On appeal, the Court of Appeals found evidence in the probate court’s record that would support the probate court’s decision to appoint Wesley over Wife. For example, the probate court heard evidence that Wife enabled Mr. Jenkins’ alcoholism. There was also evidence that Wife was unable to control Mr. Jenkins when his behavior became “extreme.” However, the probate court did not provide in its opinion any “good cause” as to why it did not follow Mr. Jenkins’ written nomination that his Wife serve as his guardian and conservator; it simply appointed Wesley to serve in these roles. While upholding the probate court’s appointment of Wesley, the Court of Appeals remanded the case to the probate court to provide written findings of facts (“good cause”) as to why it selected Wesley over Wife, the person Mr. Jenkins nominated in writing to serve as his guardian and conservator.

While not a game-changing opinion, this opinion serves as a reminder to the probate courts about their role in protective proceedings. The probate court is not supposed to substitute its judgment for the desires expressed by the proposed ward except where there is “good cause.” An adult child may be a jerk, but if a parent nominated this jerk to be his guardian or conservator, the court should honor this wish. If there is “good cause” for not appointing the nominated person, the court’s opinion needs to state what that good cause is. The court should not throw up its hands in frustration and appoint the county as fiduciary simply because the fighting family members are annoying or unreasonable.

I appreciate that deciding which child should be responsible to the court for a parent’s care is not an easy decision. I recently had a retired probate court judge explain how, of all the matters that came before his court, guardianship cases routinely kept him awake at night. Fortunately, honoring the wishes of the proposed ward, as long as it is not to the proposed ward’s detriment, is the right decision.

1In contested matters, I have frustrated attorneys and courts on more than one occasion when I have asked why anyone should bother nominating a guardian or conservator in a power of attorney? After all, the purpose of advanced planning is to allow that individual to state his preferences in the event he became incapacitated, and the court and other attorneys intended to ignore those wishes upon his incapacity. The other parties refused to acknowledge the possibility/probability that perhaps the parent had a good reason for nominating one child over the other. Sadly, each time I raised this question as to why we were not going to honor the written wishes of the proposed ward (e.g., where was the good cause), I received a rolling of eyes from the judges and other attorneys who found this question to be unhelpful.

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