Answering Audience Questions Regarding Guardianships

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk answer questions from the audience regarding guardianships and moving out of state

Question from Audience: Since there are certain guidelines that I must follow with a guardianship or conservatorship, I am planning on moving to New York, would it be best for me to wait until I move to New York or do it here?

Mr. Biernath: If you know you plan to remove this person from the jurisdiction of the court you will have to notify the court.

Judge Wolk: You have to ask permission. You don’t get to write me a letter; you have to ask for permission to move them. You can do that as part of your petition at the initiating faze.

Mr. Biernath: I would suggest if you haven’t filed yet and you know you’re going to move within a reasonable time…

Audience member: In about 2 years and the child is 14.

Mr. Biernath: Remember that this [guardianships/conservatorships] doesn’t apply until the child turns 18. So if you move before they’re 18 then the point is mute. But again you have to look at all of the circumstances; those first two slides keep coming back. If something is going on that has to be addressed immediately then you don’t have a choice.

Judge Wolk: The other interesting point and we get this a lot and it gets confusing, we do guardianships here [Georgia] and unexpectedly in 5 years someone has to move. They come in and say “Judge we need to move because I got a better job. My child has a functioning level of 8 and needs to stay with us. Were moving to Ohio” Ok, they can still move to Ohio but they still report to me. It is still a Georgia guardianship but in Ohio.

Audience Member: So the annual reporting still comes to you?

Judge Wolk: Yes! And if you don’t do it I’ll cite you and your still in my jurisdiction because you consented to be in my jurisdiction by choosing to file the guardianship. I’ll cite you and you’ll have to find your way back here and get a plane ticket or do something! The down side to that is we had that situation in Ohio and the emergency rooms said Oh No! You have to get a guardianship here. We don’t understand this paper work here, their back woodsy in Georgia and whatever. But it’s the same thing with us. There are transfers of guardianships where you can move the guardianship. Instead of instituting a new one you can say ‘well I’ve got a guardianship down in Georgia’ and there’s a whole procedure of transferring between states.

Mr. Biernath: But that whole issue, like an emergency room not accepting a guardianship from Georgia. I actually had that situation and for the first time I was actually able to cite the U.S. Constitution. It says that “each state must recognize the legal acts of every other state”. That guardianship is a legal act of the state of Georgia. Just like you don’t have to get married in every state you go to, they recognize your marriage.

Judge Wolk: And I can get see what I like to call the DMV Rule, which is ‘I can tell you what the law is all day long but it depends on which person you walk on up to what they’re going to require. So if you walk into an emergency room on a regular basis with a Georgia guardianship and its consistently causing you problems, I can tell you that its legal and that doesn’t matter when your sitting there with a sick kid that you need to get in the hospital and you don’t want to wait for an hour while they pontificate about the validity of your guardianship that I gave you 5 years ago!