When a Guardianship is Needed

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk address recognizing the need for a guardianship for a special needs individual.

Mr. Biernath: So when is a guardianship needed? Now we are going to get down to the nitty gritty, how do I know my child needs a guardian. This is the question you have to answer, the standard Judge Wolk answer is the proposed ward cannot make or communicate significant responsible decisions concerning their health or safety. Lots of vague words in there, isn’t it! That is the standard in Georgia, that right there is the whole thing. If your child cannot make or communicate significant responsible decisions concerning their health or safety then they need a guardian. If they can they might still need a guardian. Conservatorship, this is the same thing as a guardianship but it is dealing with property. The proposed ward cannot make or communicate significant responsible decisions concerning their property. What is not written in the law but assumed ‘and they have property’. If they don’t have any assets that are in their name, you don’t have to ask for conservatorship.

Judge Wolk: There is a divergence within the state of Georgia between the probate judges. Some of them say if you don’t have property we won’t, even if you ask for it, appoint a conservator of the property. Some of them do a sort of conservatorship in reserve in case any money comes in. I will do a conservatorship when there are no funds because of the contract issue. I have seen situations with identity theft running as rampant as it is, contracts being signed because, believe me you guys watch the news just because you don’t have money doesn’t mean your not going and signing contracts on boats and those kinds of things. So I have seen enough situations where I think having a conservatorship on file, even though there are no funds available, removing the right to contract and in-debt them selves and potentially financially harm themselves, to me justifies creating a conservatorship. That’s my conclusion and my interpretation of the law is that removing those rights is a sufficient reason, even if there is no money to manage. If you do no live in Cobb County I cannot speak to what the probate judge in your county policy and procedure is on that, but just to put you all on notice that that is a bit of difference of opinion.

Question from audience: Is property considered as any assets or physical property? Or is assets money, as what little they do make or something that Uncle Mike willed to them?

Judge Wolk: It is all of those things, and that’s where you get into that standby, putting the conservatorship on reserve. Some will do it with the anticipation of potential inheritance. But typically if you are talking about assets it is: income, property which lay people define as dirt, and there’s personal property which lay people define as stuff, and then there are bank accounts, and assets which are what lay people define as money. You have pretty much anything of value is going to count as an asset. So what you get in to, which a very real difference itself, when you get disability benefits, you’ve got an income stream, so that in fact is something that is being managed. If it can be managed as a representative payee, if you are the representative payee it is actually the benefit of.  So there are differences of opinion again, I am sorry I’m able to give you very standard answers, but there are differences of opinion if the only asset is an income stream and a rep. payee whether or not the probate judge will enter a conservatorship.

Mr. Biernath: And I’ve now done guardianships in ten different counties in front of twelve different judges and there about fifteen different opinions on this.

Judge Wolk: And they are legitimately different opinions on this. One of the down falls that Mark is going to get into is, but one of the down falls to this is that you typically have to post a bond if you’re a conservator and you have an annual return which costs ~$75 a year. You essentially have to recreate a years worth of a check book register.

Question: Make a check book registry of your checkbook or the persons?

Judge Wolk: Of the proposed ward, but they are the ‘ward’ at that point, so the ward’s money. So anything that’s coming in, sort of what you do for social security, but you would have to do it for us [probate court] too and it’s a separate pleading. So there are reasons that you might not want to have a conservatorship if you feel again what’s likely, what’s possible, what’s inevitable. If it’s very unlikely that your kid is going to be in a situation where they can go out and sign a contract then this may not be worth the hassle factor that it is worth filing with us every year. But if they are a person that is out in the community, high functioning, may get on dating websites, may do these things, this may then become something where you want to remove those rights. And you can just walk back and say “Here’s your car, you should’ve known better than to sell it to someone who had a conservatorship. And you’re legally deemed to know what’s on file at the probate court, so you should’ve known better than to do that.”

Mr. Biernath: And I’ve had success nullifying contracts just with a guardianship because the guardianship orders, specifically there is a little place you initial that has the right to enter contracts is removed. But when it comes to talking with credit reporting agencies and things like that there, they’re looking at if you have the financial power, which is the conservatorship, to clear up a credit record.