Conservatorships With or Without Bonds

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk discuss conservatorships and conservator bonds.  

Mr. Biernath: Both of those: whoever the representative payee has to provide accountings back to and social security. I usually advise clients to let the representative payee handle that and not seek conservatorship. Because mainly when I hear people complain about guardianships and all of the paper work that’s involved, what their really complaining about is conservatorship. The paperwork involved in a guardianship, once it’s been established, is a two page personal status report that’s due once a year. It’s pretty straightforward and asks: where is the individual living, how are they doing, and if any changes need to be made to the guardianship then sign, date, and file it. Where as on the conservatorship side you have the asset management plan (which is what we are going to do with the money) and the accounting (this is what we did with the money from last year). This whole thing has to be presented to the court. And if your math doesn’t add up on one, which one didn’t for me, you’ll get a nice notice from the judge saying “Get down here and explain this to me!” That means extra time and whenever a lawyer has to spend time it translates to money for the client. Just so you know the judges in this state don’t always agree on how this is to be handled.

Judge Wolk: We do things differently. I will tell you that in our court if some body is receiving only social security benefits and we do a conservatorship and the conservator is the representative payee, we do not require a bond. Also we allow an abbreviated report on what was done with the assets. So we don’t require each entry, we just say if you put social security benefits as representative payee used as health maintenance and benefit of the ward, that’s generally sufficient to generally simplify it. There aren’t a lot of judges to do it that way, I will tell you most of the courts require a bond if you have social security benefits. But we will get into that, but it is an insurance policy that you’re not going to seal the money on a years worth income, because that is what the code section says, but if you’re the representative payee you’re accountable to social security if you mismanage it they will replace it and make the recipient whole. We don’t want to take away money from a social security benefit recipient by making them post a bond out of those proceeds, so that’s how we handle it.

Question from the audience:

What is a child has special needs and has a special needs trust set up?

Judge Wolk: That’s not in my jurisdiction and I don’t manage that! And we don’t want to know about it unless its money being paid to the conservator for day to day management. That check is income that you report and you will be bonded on it.

Mr. Biernath: But that’s only if there is a conservatorship. The trust can pay that money to the guardian and the guardian can you use for a benefit. That is a trust issue; the trustee is legally responsible to see that the money is used for the beneficiaries benefit. So if the trustee messes that up then the beneficiary or the beneficiary’s representative can take the trustee to court, but not in the probate court, but superior court