Monday, December 28, 2015

Due process in appointing a guardian for an adult

Among our most cherished rights, as American citizens, are the freedom of choice as to our movements, to be free to go where and when we wish, and the right to control and use our worldly possessions as we see fit. To place another in control of our person and our possessions deprives us of these basic rights. The law permitting such deprivation should be strictly construed and all requirements of the law strictly complied with.
Justice Carlton Mobley for the Supreme Court of Georgia in the unanimous opinion in Boockholdt v. Brown, 224 Ga. 737, 739, 164 S.E. 2d 836, 838 (1968).

Thursday, April 9, 2015

How to terminate an adult guardianship or conservatorship in Georgia

Guardianships and conservatorships, by and large, are not often terminated because, in most cases, the adult ward is of advanced age or disability and the need for a guardian and conservator will continue until death. However, in cases of mental illness or in cases of catastrophic injuries from which a ward may recover significantly, it may be appropriate to end the guardianship when the need for a guardian abates.

In fact, the law contemplates ending guardianships and removing the guardian. In the procedures to appoint a guardian or conservator for an adult, the Official Code of Georgia makes references to finding the expected duration that the adult ward will need protection, even though the appointment is always permanent (except for an emergency appointment). The Code also explicitly gives an adult ward the right to be restored to capacity at the earliest possible time, suggesting that a guardian or conservator should monitor the ward’s health and anticipate termination at some point.

In Georgia, the petition to terminate an adult guardianship or conservatorship is called a “petition for restoration of an individual formerly found to be in need of a guardian and/or conservator.” The procedure to terminate the appointment of a guardian or conservator is much like the same procedure to appoint one in the first place:

(1) A petition must either be filed by two people or by one person with an affidavit from a physician, psychologist, or clinical social worker. The petition must include certain information and give notice to certain interested persons. (2) The probate court must review the petition to determine if there is probable cause to support it. (3) Finding probable cause, the probate court must appoint a professional to evaluate the adult ward. (4) The evaluator must file a report, and the probate court must again determine whether there is probable cause to schedule a hearing. (5) Upon this second finding of probable cause, the probate court must schedule a hearing to determine whether the adult ward’s rights are to be restored.

There is one big difference, though: The burden of proof to remove a guardian is lower than that to appoint one. Appointing a guardian or conservator requires "clear and convincing evidence," but removing one only requires a "preponderance of the evidence." However, wards wishing to restore their rights should still be cautioned that they should prepare their case well — with the help of a lawyer — because if their petition is denied, then they may be restricted from filing another petition for two years. (The two-year limit also applies to a court’s denial to appoint a guardian.)

Article: "Protecting the Protected: Overseeing Adult Guardianship"

This article highlights common procedural infirmities that plague the establishment of adult guardianships and conservatorships nationwide, along with brief examples of abuse: “Protecting the Protected: Overseeing Adult Guardianship,” by Judy McKee and Sean M. Douglass. It is a few years old but still very relevant.