Inside the Court Room: Making a Plea for Guardianship

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk discuss the important information to express to the judge at the guardianship/conservatorship hearing.

Mr. Biernath: The petitioner is the one who has the burden of proof. It’s your job to convince the judge to do what you want them to do. It’s not the judge’s responsibility to figure out what needs to be done. I see so often when parents go into court they’re not really sure what they want the judges to do and the judges aren’t even sure what they [petitioners] them to do. So it is very important that you understand that it is not the judges responsibility to figure out what you want and then do it, it is your job. You have to prove that your child or your loved one needs a guardian with what is called ‘clear and convincing evidence’. We’ve had a great case study on ‘beyond reasonable doubt’; I think with the Casey Anthony trial that jury did not feel that the case was proven beyond a reasonable doubt. That is not as far as we have to go. What we have to do is clear and convincing evidence which means, with the way I like to put it, anybody has to look at what you’re going to show and say ‘Yeah, that person needs a guardian’. It’s that clear. I do know that many of the judges will spend a little bit of time trying to develop if they don’t feel like they’ve reached that point yet. They may ask additional questions to try and see which way it’s going to jell, yes their going to need it [guardianship] or no. I don’t know if you want to address something of that, it might be getting into….

Judge Wolk: Generally it needs to be that a reasonable person would see pretty clearly that this person needs help, that they are unable to take care of themselves or their property. I let every body present their evidence and if they fail to meet that standard then they lose. But you have to be prepared for a judge who isn’t so patient because they have 15 other cases to hear that day. You’ve got to get your point across pretty clearly and pretty efficiently because there are times if you’ve been talking for half an hour and you haven’t gotten to the point yet then the judge is going to be like ‘Clearly you don’t have anything that’s going to convince me so I am going to move along’.

Mr. Biernath: If we could save questions for later. One thing with parents of special needs individuals, we all want to look at the positive sides, we want to focus on what they can do. The fifteen minutes you’re in court, you got to focus on the things they can’t do because the judge cannot rule based on what they can do. The judge has to rule on what their not able to do. So for that fifteen minutes in court that’s what you focus in on. Once that hearing is done you never have to go back there again. I see too frequently, in fact when I’m sitting with a family and asking about their child and they’re telling me about all these great things that they’re able to do, I’m thinking there’s not going to be enough evidence to support the need for a guardianship. And they say ‘Oh, no no they need a guardian’. And I tell them ‘You’re not telling me why they need a guardian’. It really takes a little bit of time to get to that point. Then I find out that they’re reading on a second grade level, at school on their IEP they have am IEP goal of true/false questions getting them right 50% of the time. And I have to tell you, when I see the IEP goals I laugh. A completely random selection, you should get it 50% of the time, on a question that just gives you two options. This child was performing less than that so there was clearly something wrong. But for the 15 minutes in court you have to focus on what your child cannot do because that’s the only information Judge Wolk or whichever judge you are in front of has about your child.

Judge Wolk: You’re on vacation for a week and someone is taking care of your kid. What do they need to know that you do for your child every day? If you bathe your child, if you dress your child, if you feed your child, if you prepare meals and they feed themselves, if they can make a sandwich but can’t cook on the stove, if they can make their own doctors appointments, get in the car and drive themselves to doctor and drive themselves home, get the prescription, drive themselves to the pharmacy, fill the prescription then take the medication appropriately, go ahead and let me know that. If any of those things are untrue, those are the things that guardianship is meant to address. Look at what a care giver would have to do if they were taking your place. If that gives the judge some insight into what you’re talking about when you say you can’t. This is in no way a judgment on your parenting skills. This is in no way a judgment on the accomplishments that your child has made in spite of the decisions God made about how they should be formed. This is in no way anything like that. This is ‘Why do we need to remove these rights and transfer them to you’. As Mark says, it’s a really difficult thing to sit in an open court with a lady right next to you taking down every word you say and talk about your child’s weaknesses when that’s not what you want to focus on but it is important.

Mr. Biernath: And in many cases, the most simple way to demonstrate the need, bring your child to court with you. You don’t have to but if your goal is to present clear and convincing evidence, if Judge Wolk meets your child. If it is not medically advisable to do that, don’t do it.

Judge Wolk: And if its going to make it really really hard for you to tell me what’s going on because you don’t want to say what your child can’t do and your more comfortable and the court appointed attorney is willing (this is important) to waive your child’s presence because they have a right to be there and hear everything that’s said, but if they are willing to waive that and say that aren’t able to appropriately advance the hearing then they are entitled to be there but if cant do that then they can waive their presence in most counties. There are some judges that will not let you waive a proposed wards presence. I know of judges who have gone and conducted hearings in the waiting room of an ICU unit because they will not waive the wards presence. This is a person who is clearly in the ICU, she’s there, and she’s conducting the hearing seeing them [proposed ward] through the glass. But they insist and most places it can be waived, but not all.