Below is a list of common proceeding types used in probate court related to guardianship. Click on a topic to move the page directly to that section.
Introduction to Adult Guardianship
Is the formal appointment of a guardian or conservator by the Probate Court necessary to care for or conduct the affairs of an adult who has become incapacitated? The answer to this very important question depends on the circumstances of each individual case. Asking it is both appropriate and prudent, because adult guardianship and conservatorship proceedings are complex, time-consuming, and may be expensive primarily because of the due process protections afforded the proposed ward.
However, this is not to say that the proceedings are overly complex. The legal protections help assure that the Court receives clear and convincing evidence of incapacity before removing the rights of an adult citizen, and that the order issued in every case is fashioned to the particular circumstances. Furthermore, there are often alternatives available to guardianship/conservatorship, which may aid accomplishment of the most suitable requirements in any particular case. One should consider, and if appropriate, utilize these alternatives to accomplish a fitting outcome and provide any needed protection for the adult.
It is important to distinguish physical disability or incapacity from mental disability or incapacity. One can be physically incapacitated yet retain full mental competence. On the other hand, one might be mentally incapacitated but be physically quite fit and well. The availability and/or effectiveness of any of these alternatives will likely be dependent upon the type and extent of incapacity. To be legally effective, the adult must have signed any documents discussed herein requiring their signature while they were capable and competent to understand the nature and purpose of the documents. Proper preparation of the alternatives reviewed in this pamphlet may require the services of an attorney experienced in this field.
Financial Power of Attorney
In addition to a health care power of attorney, one may also execute a financial or general power of attorney, in combination with or executed separately from the health care power. A financial power of attorney names an agent to act in the place of the individual, primarily in monetary and property matters, and defines the extent of or limitation on the authority given. The authority granted may be very limited and specific or be quite broad and include the authority to: write checks and make deposits; buy and sell real estate or other property or investments; negotiate and settle debts and claims; etc. Powers of attorney (both general and health care), executed while the adult is mentally competent, often allow for the conduct of all business and management of all personal affairs of the adult once incapacitated without the necessity of guardianship or conservatorship. However, the appointment of a conservator for the adult revokes a financial power of attorney unless the court directs otherwise. The Georgia Code contains a form for a Financial Power of Attorney and an explanation of the nature of the power. Top of Page
A competent adult may also create an inter vivos, or "living" trust, which provides for the handling of all or certain financial affairs by a designated trustee over property transferred into the trust. It allows one to specify the person or entity (e.g., a trust department) to handle the affairs and manage the trust property, and may define the exact manner of property management. It designates a trustee with whom third parties may deal regarding financial and other matters within the scope of the trust in the event of incapacity. Top of Page
Representative Payee Status
When a person receiving Social Security, Supplemental Security Income or VA benefits becomes incapable of managing those benefits, the Social Security Administration or Veterans’ Administration can appoint a representative payee for such benefits without the necessity of conservatorship. If the person is a resident of a nursing or personal care home, the benefits may also be made payable directly to the care facility.
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Georgia Medical Consent Law
It is also important to recognize that, in an emergency, the law allows physicians to treat anyone who is incapable of giving informed consent. In all non-emergency situations, the next of kin may consent if the patient is unable to do so. The Georgia Medical Consent Law lists the persons who may consent to medical care for another. Guardianship may not be necessary to consent to medical treatment, unless there is a dispute among those persons having equal voice under the law. Top of Page
Placement Decisions and Procedures
Often, guardianship is not required for placement of an adult in a personal care home, assisted living facility, or nursing home as long as the resident is either cooperative or incapable of objecting. A competent adult has the right to determine his own residence, and a facility is without authority to restrain an adult absent consent, unless the authority to determine residence has been placed in another (a guardian.) At times, it may be difficult to gauge whether a new resident will ultimately "object," since they may be resistant at first but may adjust after a period and voluntarily remain resident. Of course, it is also necessary to make the financial arrangements for the care of the resident, which may be done by the resident (if competent), an attorney-in-fact, or by anyone accepting the obligation and guaranteeing payment. In 1999, the Georgia Legislature passed the Temporary Health Care Placement Decision Maker for an Adult Act. Under the Act, upon certification by an attending physician, a list of persons acquires the authority to such limited consent similar to that in the Georgia Medical Consent Law. Moreover, the attending physician certifies that an adult in a hospital, medical center or other healthcare institution is incapable of giving consent to a discharge from such facility, and in the adult’s best interest, considers a transfer or admission to an alternative facility or placement, including nursing, personal care and rehabilitation facilities and home- or community-based programs. If no one authorized by such law is available or if all who are available waive the authority to consent or dissent, one may file a petition in the probate court seeking an order solely authorizing such discharge, transfer or admission. The order shall be limited in time to those purposes and does not result in the appointment of a guardian.
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Of course, there are times when legal guardianship or conservatorship is needed and necessary. A guardian has granted authority over the person of another, and a conservator has granted authority over the property (including money) of another. The law provides appropriate protections for the adult. The court monitors the actions of guardians and conservators, and they must file written, periodic reports on the condition of the ward and the ward's property with the probate court by which appointed. Usually pursued as a last resort, utilize these proceedings when appropriate. Top of Page
Introduction to Minor GuardianshipGeneral Information and Instructions
Conservatorship is a legal relationship, created by order of a court with proper jurisdiction, between the conservator and the minor (similar to that of an agent or trustee.) Under Georgia law, Probate Courts have exclusive jurisdiction over the appointment of conservators for minors.
Conservatorship for the property of a minor may become necessary even when the minor has living parents or a legal guardian. The parent or guardian may serve as conservator if the court approves it and appoints them. If two or more conservators are appointed, they become co-conservators. When the court issues an order appointing a conservator, the conservator receives Letters of Conservatorship. If the court appoints more than one conservator, they serve together as co-conservators and are jointly and severally liable. Each appointed conservator is required to take an oath and to post a surety bond with the court, in an amount set by the court, to secure the faithful performance of the conservator’s duties and responsibilities. The bond is, in effect, an insurance policy against any misappropriation or mismanagement of the minor’s property by the conservator(s).
Probate Courts generally prefer, and often require, the use of corporate sureties (insurance companies) on bonds. The premium for the bond, as will also be shown under the section on compensation, Commissions and Expenses, is payable from the minor's estate as an expense of administration, and a conservator is generally not required to bear this expense personally. A conservator owes a duty of undivided loyalty to the minor and must act in the best interest of the minor.
Conservators should avoid even the appearance of a conflict of interest in making decisions about the management of the minor’s property. A parent or legal guardian, if legally obligated for the support of the minor, has an inherent conflict of interest. Self-dealing by a conservator, that is, buying property from or selling property or services to the minor, is inherently suspicious and the court shall closely scrutinized such activity. The conservator should avoid self-dealing except in unusual circumstances with full disclosure to the court. Additionally, expenditures that appear to or do benefit someone other than the minor or appear to satisfy the legal obligation of another to support the minor shall be subject to scrutiny by the court.
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When Appointment of a Conservator Is Necessary
Under Georgia law, no one, not even a parent, may demand and receive money or property on behalf of a minor without the Probate Court having appointed them as conservator for the minor. An exception to this rule is that a natural guardian may demand and receive on behalf of a minor money or property that does not exceed $15,000 in value without becoming conservator for the minor. Georgia law provides that each parent of a minor is a natural guardian, except that, if the parents are divorced and one parent has sole legal custody of the minor, that parent is the sole natural guardian. If the divorced parents have joint legal custody, they both remain natural guardians. If one parent dies, the sole surviving parent is the sole natural guardian, even if the parents were divorced and the deceased parent had sole legal custody. For purposes of determining who the natural guardian is, the mother of a minor born out of wedlock is the sole parent and natural guardian of the minor, unless the father has legitimated the minor. Natural guardians have the authority to settle claims on behalf of the minor when the gross amount exceeds $15,000, but the net amount to recover is less than $15,000; however, court approval of the settlement is required. Therefore, if a minor has no natural guardian (regardless of the value of money or property), or if the value of money or property to which the minor is entitled exceeds $15,000, the appointment of a conservator shall be necessary. Top of Page
Appointment of Conservators for Minors
In Georgia, the Probate Courts may grant conservatorship for a minor who is a resident of the State or, if a non-resident, owns or has an interest in property in the State. You may file the petition for conservatorship of a resident minor in the county where the minor lives or in the county where the proposed conservator lives. You may file the petition for conservatorship of a non-resident minor in the county where the Georgia property of the minor is located. You must provide notice to the parent(s) of the minor who retain their parental rights. If there are no such parents, provide notice to the adult siblings of the minor (up to three in number.) If there are no such parents or adult siblings, provide notice to the grandparents (up to three in number.) If none of the previous applies, provide notice to the three nearest adult relatives of the minor. In addition, you must provide notice to any person designated in any notarized and witnessed document made by a parent of the minor that deals with the conservatorship of the minor. After the filing of a petition and the giving of the notice, the court may hold a hearing, and the standard for determining all matters in issue shall be the best interest of the minor. Top of Page
A conservator is a fiduciary entrusted with the management of the funds and property of a minor, much like a trustee. A conservator shall receive, collect and make decisions regarding the minor’s property, except as the law provides or by the court’s order. A conservator shall act in the minor’s best interest, exercising reasonable care, diligence, and prudence. The mere appointment of a conservator is not a determination that a minor, who is fourteen years of age or older, lacks testamentary capacity (the capacity to make a valid will.) Under Georgia law, regarding conservatorship, the minor has the right to:
- Have a qualified conservator who acts in their best interest.
- Have a conservator who is reasonably accessible to them.
- Have their property utilized as necessary to provide for their adequate support, care, education, health, and welfare.
- Individually or through a representative or legal counsel, bring an action relating to the conservatorship.
Under Georgia law, a conservator shall:
- Respect the rights and dignity of the minor.
- Make himself or herself reasonably accessible to the minor and maintain regular communication with the minor.
- If necessary, petition to have a guardian appointed.
- Endeavor to cooperate with the guardian, if any.
- Provide for the support, care, education, health, and welfare of the minor, considering available resources.
- Give such bond as required by law and as set by the court.
- Within two months of appointment, file with the court and provide to the guardian, if any, an inventory of the minor' s property and a plan for administering the property, as required by law (the Inventory and Asset Management Plan.)
- Take into account any estate plan of the minor known to the conservator in the administration of the conservatorship.
- Keep accurate records, including adequate supporting data, and file annual returns as required by law.
- Promptly notify the court of any conflict of interest between the minor and the conservator if a conflict arises or becomes known to the conservator, and take action as required by Georgia law.
- Keep the Court informed of the conservator's and the minor’s current address and telephone number.
- Act promptly to terminate the conservatorship when the minor reaches age eighteen.
The section on Reporting Requirements covers Inventory and Asset Management Plan and Annual Returns more thoroughly. Conservatorship does not relieve parents and others who may be legally obligated to support the minor from that obligation. Utilization of the minor' s funds or property for the minor’ s own benefit should take into account the legal obligation of others to support the minor and any other income and support of the minor. It is the expectation of the law and the court that it is the primary duty and responsibility of a minor’ s conservator to protect and preserve the funds and other property of the minor during minor status and to surrender the funds and other property to the minor at age eighteen.
The court shall not routinely permit expenditures of the funds of a minor having parents or others legally obligated to support the minor. If the minor demonstrates lack of ability to make and communicate responsible decisions concerning the management of their property by age eighteen, (that is, meet the criteria for the appointment of a conservator of an adult ward), the conservator may file a petition for an adult conservatorship to take effect within six months prior their eighteenth birthday. It is the duty and responsibility of the conservator to manage and invest the minor’s estate properly. The conservator is required to invest funds (money) in a manner approved by Georgia law as a "legal investment," unless otherwise authorized by law or court order. An unauthorized or imprudent investment made by the conservator that results in any loss makes the conservator potentially liable. The law authorizes the conservator to maintain investments, which existed at the time of the appointment of the conservator.
For the minor’s benefit, the conservator must properly manage and protect non-cash assets. If an asset is reasonably capable of earning income, the conservator may dedicate it to that purpose unless there is a compelling reason not to. The conservator should preserve and protect non-income producing assets or liquidate them (upon being granted the authority), as may be appropriate under the circumstances. Except as specifically authorized by law, a conservator does not have authority to sell, convey, transfer, mortgage, pledge, give away or otherwise dispose of the minor’s property without an order from the court. Upon the application of the conservator, the court may, after the appointment of a guardian-ad-litem and after appropriate notice is given as required by law, grant the conservator such authority, if the proposed transaction is considered by the court to be appropriate, proper and in the minor’ s best interest. Generally, the conservator is to preserve the minor’s assets, and conservatorship permits selling the minor’s assets only when necessary to provide for the care and support or when preservation of the asset is burdensome or expensive. The court may grant authority to the conservator to sell the asset at a public sale (a legal auction) or at a private sale under a specific contract. Authorization to sell perishable items or items that may rapidly decline in value may occur more quickly.
All property of the minor titled or registered in the name of the conservator must be titled or registered in the fiduciary capacity of the conservator (i.e., as a conservator) and not in the conservator’s name alone. Typically, register the title, account or deed as "John Doe, as Conservator for Richard Roe, a minor," although any variation, which clearly shows the fiduciary nature of the registration for the benefit of the named minor, may be accepted and approved by the court. Clearly designate bank accounts to avoid unintentional commingling of funds or attachment for debts of the conservator, and provide the minor’s Social Security number to the bank for the reporting of all interest income to the Internal Revenue Service. A conservator should never combine or mix funds of the minor with funds of the conservator. The conservator must maintain and protect tangible items and other personal property of the minor and not have them commingled with the property of the conservator as to lose their identity as the minor’s property. Absent the court’s approval, a conservator has no authority to use property of the minor in such a way that dissipates, depreciates, wastes or consumes it or otherwise to use it for the benefit of anyone other than the minor. A conservator has the responsibility of filing, on behalf of the minor, all federal and state income tax returns where the minor is required to file. The conservator must also file ad valorem and intangibles tax returns in Georgia and any other state in which the minor has property or income. Top of Page
Reporting RequirementsNOTE: All reports must meet the approval of the Probate Court.
Conservators are required to file certain reports with the court having jurisdiction over the proceedings. The court utilizes certain information in these reports to supervise the affairs of the minor and to supervise and assure compliance with all the lawful duties and responsibilities of the conservator. Failure of the conservator to comply with any of the reporting requirements may subject the conservator to citation to appear before the court. The court has broad discretion in dealing with conservators who fail to comply with their lawful duties and responsibilities, including the failure to file timely and properly completed reports. The court may remove conservators from office and may take other action as it determines appropriate under the circumstances in the case. This may include an assessment (money judgment) against the conservator and the surety on the bond for any amount where the court finds that the conservator has improperly spent, mismanaged or misappropriated funds. The court may also hold a co-conservator jointly or severally liable for the acts of the other co-conservator Top of Page
Inventory and Asset Management Plan
Probate Court requires conservators to file with within two months from the date of appointment an inventory of the minor’s property and a plan for managing, expending, and distributing the property of the minor. The Inventory and Asset Management Plan must describe all of the minor’s assets and liabilities, list all of the personal and real property owned by the minor, and describe how all the property is titled. The conservator must swear or affirm that the inventory contains a true statement of all the assets and liabilities known to the conservator. The inventory should set forth the reasonable, current value of all assets owned by the minor. If the interest of the minor in the property is less than full title, the description should reflect the limitation, and it should show the value of the minor’s interest. For example, shown is a one-half interest in a residence worth a total of $100,000; therefore, the value of the minor’s interest is $50,000. The court uses Inventories to determine the full value of the estate, which no one may not have fully known or only estimated during time of filing of proceedings. The court may require verification of balances on deposit and that all conservatorship accounts are properly titled. Inventories also allow the court to determine the sufficiency of the bond posted by the conservator. The actual needs of the minor and consideration of their best interest forms the basis of the plan for managing, expending, and distributing the minor’s property. The plan shall include an estimate of the duration of the conservatorship, projections for expenses and resources, any proposed changes in title to assets in the conservatorship estate, and a proposed budget for the expenditure of funds. The conservator is required to provide a copy of the Inventory and Asset Management Plan to the minor’s guardian, if any. With each annual return, the conservator is required to file an updated Inventory and Asset Management Plan. The Inventory and Asset Management Plan is a standard form [GPCSF 59], and any probate court uses this standard form. Top of Page
Annual Returns (Accountings)
Probate Court requires conservators to file returns annually within sixty-days of the anniversary of the date of qualification. The Return shall consist of a statement of the receipts and expenditures in the conservatorship during the preceding year, an updated Inventory and Asset Management Plan, a statement of any fact necessary to show the true condition of the estate, and a statement of the current amount of the conservator’s bond. Annual Returns render an accounting to the court of the actions, transactions and dealings of the conservator. The law requires the court to audit the returns of conservators, and conservators are required to maintain complete and accurate records of all of their actions, transactions and dealings. The law requires conservators to maintain all records and documents that support every return and make available the same to the court for its use in reviewing or auditing a return. Since conservators are also required to file income tax returns for the minors, conservators should maintain all records for not less than three years and may want to maintain all records until after terminating the conservatorship and the applicable statute of limitations on the conservator’s liability has expired. The conservator is required to mail a copy of each return to the surety on the conservator’s bond and the minor’s guardian, if any. If the minor has no guardian or if the conservator is also the guardian, the conservator is required to mail a copy of each return to the minor. The Annual Return is not a standard form, and a conservator must use and file such form as required or approved by the court having jurisdiction over the conservatorship.
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The conservator has the legal responsibility of filing income, ad valorem and intangibles tax returns for the minor. The Internal Revenue Code provides for the assessment of certain penalties against the conservator personally for failure to file returns under certain circumstances. In addition, there are usually penalties and/or interest payable for delinquent returns (including ad valorem and intangibles returns), and such penalties or interest may be assessed by the court against the conservator personally if the same result from the intentional act or inexcusable neglect of the conservator. The court may require filing of copies of the minor’s income tax returns into court record. Top of Page
Dismissal and Discharge
A Conservatorship automatically terminates on the date the minor reaches age eighteen, or upon an earlier legal emancipation of the minor, or upon the death of the minor prior to reaching age eighteen. A conservator may also petition to resign as conservator. Upon the termination or resignation, the conservator must deliver any money or property in the hands of the conservator to the former minor (at age eighteen) to a successor conservator, if applicable, or to the personal representative of a deceased minor’s estate. Upon a termination or resignation, a conservator may petition the court for an order dismissing the conservator from office only, or proceedings for final settlement of the conservator’ s accounts and discharge of the conservator from office and all liability may be filed. Formal discharge is necessary to release the conservator’s bond. NOTE: The court may require a former conservator, after termination or after resignation, to petition for final settlement and discharge.The Petition of Conservator for Final Settlement of Accounts and Discharge from Office and Liability is a standard form [GPCSF 34], and any probate court uses the standard form. Top of Page
Petition for Leave to Sell
Conservators do not have authority to sell or mortgage any property of the minor without authority from the court, except that the conservator may sell stocks or bonds of the minor that are either listed or admitted to unlisted trading privileges for not less than the published bid prices. The conservator must file a petition with the court to obtain the authority to sell, rent, lease, exchange, or otherwise dispose of any real or personal property of the minor. Depending upon the property or the circumstances, a conservator may seek leave to sell property at a public sale (a legal auction) or a private sale (pursuant to a proposed, actual contract). The court may authorize conservators to sell perishable items, property that depreciates rapidly, or property that is overly burdensome to maintain, more quickly than assets that are more durable. The Petition of Conservator for Leave to Sell Property or Rent, Lease or Otherwise Dispose of Property [GPCSF 14] and the Petition for Leave to Sell Perishable Property by Conservator [GPCSF 15] are standard forms, and any probate court uses the standard forms. Top of Page
Petition for Leave to Encroach
Probate Court authorizes conservators to make disbursements from the current, annual income of the minor for their support, care, education, health, and welfare, unless restricted by the court. Conservators may not expend any portion of the principal or corpus of a minor’s estate without specific authority from the court. The conservator could seek such authority in the original petition to the court; thereafter, the conservator must file a petition for leave to encroach or in an Asset Management Plan filed with the court to receive such authority. When the conservator requests such authority for purposes of the ongoing support and maintenance of the minor, they must present a budget to the court for an approved amount in excess of annual income. When the conservator requests such authority for a single or one-time purchase or purpose, the petition must fully explain the need and the amount requested. The court shall not routinely permit expenditures of the funds of a minor having parents or others legally obligated to support them. The conservator should be prepared to show that this petition to encroach is necessary and appropriate. Elements that may comprise this necessity include due consideration of the parent’s, or other’s (who are legally obligated to support the minor) ability to provide support or income to the minor, including income or support (such as Social Security, VA and other survivor benefits) received by those having physical custody of the minor. Generally, the court shall not permit encroachments for food, clothing, shelter, education and care for the minor. The court may assess the costs of filing the Petition for Leave to Encroach against the conservator personally if the petition is denied, as the court has deemed the petition as filed without proper consideration of other income and support for the minor. The Petition for Leave to Encroach on Corpus is a standard form [GPCSF 20], and any probate court uses the standard form. Top of Page
Compensation, Commissions and Expenses
Conservators are entitled to compensation in accordance with a statutory schedule. The basic commission payable to conservators is 2.5 percent of all sums of money received and 2.5 percent of all sums of money paid out by the conservator, and 10 percent of all interest earned. The commission on interest earned is in lieu of, and not in addition to, the basic commission on sums received. There shall be no commission paid on the payment of a commission to any conservator. In addition, conservators are entitled to a commission equal to 0.5 percent of the market value of the conservatorship estate as of the last day of the conservator’ s reporting period, proportionately reduced for any reporting period of less than twelve months. The court may approve reimbursement to the conservator for all reasonable expenses incurred in the administration of the conservatorship estate. Conservators may petition the court for additional compensation when deemed appropriate and for compensation for delivery of property in kind. Commissions and other compensation of conservators and the premiums on the bonds of the conservator are part of the expense of administering the estate and potentially chargeable against the corpus of the estate as well as the income. Conservators who fail or refuse to file returns with the court within the time set by law without just cause forfeit the right to commissions for the year or period covered by the return. A conservator, who the court has removed from the office for waste or mismanagement, is not entitled to receive commissions. Top of Page