Guardianship Disputes

Guardians and conservators owe a special duty of care to the minor or incapacitated adult they represent. When guardians breach that duty, called a breach of fiduciary duty, a lawsuit or dispute may arise. Often, a friend or family member discovers the problem first. The attorneys at Gaslowitz Frankel LLC represent guardians, minors and incapacitated adults when guardianship disputes arise.

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Cruver v. Mitchell - Probate court’s incorrect analysis was an abuse of discretion

Posted: January 21st, 2008 by Gaslowitz Frankel LLC

In Cruver v. Mitchell 1, two daughters petitioned to be appointed guardians and conservators of their elderly mother, who was suffering from end-stage Alzheimer’s disease. The petitioners had removed their mother from the Medicaid program, fearing that the State would take possession of the mother’s real property under Medicaid’s estate recovery program. They planned to sell some of the mother’s property to a relative to generate funds for her care, thus keeping the property in the family. The probate court appointed the county conservator and denied the guardianship. The Court of Appeals upheld the determination to appoint the county conservator but reversed on the guardianship. O.C.G.A. § 29-5-3(b) establishes an order of preference for conservator appointments, and though the adult children would have preference, the probate court had discretion to disregard that preference order. Here, there was no evidence that the Medicaid opt-out was financially wise or that the mother would have sufficient funds without Medicaid, and further, the petitioners, as heirs-apparent, had a conflict of interest in the matter. On the matter of the guardianship, the probate court judge determined merely that the petitioners had taken care of their mother’s affairs thus far without a guardianship, so none was needed. Under O.C.G.A. § 29-4-1, however, the inquiry must focus on the condition and best interest of the adult, not on whether the adult’s family to date has acted successfully on her behalf. The Court of Appeals held that the probate court’s incorrect analysis was an abuse of discretion and remanded the case for further consideration of the guardianship issue.

1 2008 WL 81307 (Ga. App.)

Related News   Civil Appeals, Guardianship Disputes, Guardianships/Conservatorships
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