Overview of Guardianship Designation

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk discuss distinctions between requesting to be a guardian versus who is actually appointed as guardian.

Mr. Biernath: The court does look to any advance guardianship designations for most developmentally disabled adults who didn’t have the opportunity to suggest who they wanted to be guardian, it won’t apply. But this is the exact same process as when mom is in the nursing home and now needs a guardian. This is the exact same process the family has to go through. And mom may have designating some body to be her guardian if one were needed. But those advance guardianship designations are only suggestions.

Judge Wolk: Also, if you as parents make a designation, in a will for example, of who you want to be guardian of your disabled adult, if you nominate somebody that is something that we would consider. If you are the parent and you’ve been the parent that something happens to you but you put in there that you want Mark to be the guardian of my daughter, that is something that is considered by  the court.

Mr. Biernath: and that was actually a change made when the probate code was revised a few years ago. Before you could only nominate guardians for your minor children and that requirement was taken out and now it is for any age child of yours. You can nominate who you want to be the guardian. But again those nominations are only suggestions; the court is the only entity that can actually select the guardian. I’ve had situations where people thought they were the guardian because mom and dad left it in their will that they were the guardian. You are not the guardian until you’ve gone to court and the court has said “You are the guardian”. That guardianship designation is only a suggestion. Judge Wolk needs to determine ‘Is Uncle Harry still the appropriate person?’. Mom and dad may have nominated Uncle Harry 20 years ago in their will and they didn’t know Uncle Harry is now a crack addict.

Judge Wolk: And we’ve had that happen.

Mr. Biernath: And Judge Wolk will check into that, say “Uncle Harry, lets come over here and have a talk!”

Judge Wolk: And another thing on the evaluations, just because the doctor says “Johnny needs a guardian” doesn’t mean that I am going to find that Johnny needs a guardian. It is not a medical determination and this is very confusing and challenging to people. The doctor can say “Yes he needs guardian and/or conservator” and we can find one way or another that he doesn’t, or vice versa. We have evaluations come in a lot where the evaluator says there is no need, he’s high enough functioning or whatever, and we still have the hearing. I’ve had quite a few court appointed attorneys that represent the ward come in and say “Well the evaluator said we don’t need it. So have a good day” and I say “Sit back down! We have some work to do there!” Because, as Mark said, the circumstances are such that this person may be high functioning in a thirty minute interview and may do ok on the mini mental status exam and function, Autism is a pretty good example of that, they may run into traffic if by themselves, they’re not going to be able to handle money, or those types of situations. There are circumstances where an evaluation may lead to one conclusion and a hearing may lead to another. 

Mr. Biernath: Judge Wolk’s point with that doctors evaluation, that’s just one piece of evidence that the court considers. Its not conclusive, it’s not absolute. I’ve walked into court very confident because the doctors evaluation unequivocally stated that this person needs a guardian and then the judge said “Well, I’m just not feeling it” because the proposed ward was sitting there and presented very well. So we had to actually wind up forcing the treating psychologist to come into court to testify. And that’s not easy, especially under HIPPA. Number one psychologist and psychiatrist ethical rules prohibit them from testifying against their patient.

Judge Polk: Except under court order.

Mr. Biernath: Except under court order, but and what we discovered court order is not enough. There had to be finding of that this evidence cannot be attained any other way. And that’s what almost got us caught up. Because the doctor knew what his legal responsibilities were and he alleged there has to be some other way to get this evidence. And guess whose responsibility it is to show there isn’t any other way to get the evidence? The petitioner, the people that come to court to say they need a guardian. So it can get complicated and when you’re looking at your particular situation, what’s possible, what’s probable, what’s inevitable? When your looking at your child (I don’t want to scare you from seeking guardianship because it can get hard) look at your situation, these facts might not be your situation.