A Note From Paige
What Obergefell v. Hodges Means for Estate Planning
On June 26, 2015, the U.S. Supreme Court struck down all same-sex marriage bans, granting same-sex couples the opportunity to marry in every state and to take advantage of the rights granted to heterosexual married couples.
Marriage is a major life event, and as regular readers of my newsletter or those who hear me speak know, major life events trigger the need to update your estate plans!
Couples who were married prior to the Obergefell ruling should be aware that their estate plans should be carefully reviewed and updated. In some cases, entirely new wills may need to be drafted. This landmark decision also changes the law, thus allowing me to include provisions in wills that I previously was unable to draft. For more information on how
Obergefell might affect your estate plan, please
contact me.
(Image courtesy of arztsamui and FreeDigitalPhotos)
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With Great Power, Comes Great Responsibility: Guardianships and Conservatorships for Adults
The tragic story of
Bobbi Kristina Brown put guardianships and conservatorships front and center in the news over the past few months. Do you know the purpose of having a guardian or a conservator and the difference between the two roles?
This month, I’ll explain the basics of guardianships and conservatorships for adults in Georgia, and I’ll follow up in October with a discussion of guardianships and conservatorships for minors.
Know the Lingo: What is a Guardian? What is a Conservator?
Guardianships and Conservatorships are two important, but often-overlooked, components of a person’s estate plan. The need for a guardian or a conservator commonly arises when an individual doesn’t have a Georgia Advance Healthcare Directive or a Revocable Living Trust that describes what would happen and who would be in charge in the event that someone needs to take over an individual’s finances or become his or her primary caretaker.
This area of the law has specialized terms for those involved, so before diving into the topic, let’s learn some of the terminology:
- Petitioner(s): The person or persons asking the Court to appoint a guardian and/or conservator for a person in need.
- Ward: The person who is incapacitated, disabled, or otherwise in need of a guardian and/or conservator.
- Guardian: A court-appointed agent who is responsible for managing the Ward’s physical needs, medical needs, and general well-being.
- Conservator: A court-appointed agent who is responsible for managing the Ward’s financial assets.
- Guardian Ad Litem: A court-appointed agent who represents the interests of a proposed Ward during the petition proceedings.
Guardianship and Conservatorship: What are the Differences and Duties?
The Guardian is responsible for the Ward’s physical and personal well-being, while the Conservator is responsible for managing the Ward’s financial assets. The Guardian and Conservator may or may not be the Petitioner, and they may or may not be the same person. Each role has different duties, and these appointed individuals are required to report to the Probate Court, which has jurisdiction over the appointment of guardians and conservators.
Three Primary Duties of a Guardian
- Guardians make decisions about the Ward’s personal care and well-being.
- Guardians must file an annual Personal Status Report that details the physical and mental status of the Ward.
- Guardians must arrange for the support, care, education, health, and welfare of the Ward.
Three Primary Duties of a Conservator
- Conservators manage and make decisions about the Ward’s income, property, and other financial assets.
- Conservators must post bond. This bond must cover the value of the Ward’s income and personal property.
- Conservators must file an inventory of assets, an asset management plan, and annual financial accountings. The inventory, asset management plan, and financial accounting records are all subject to review or audit by the Probate Court.
Preparing and Filing a Petition: When Should I Get Started?
Ideally, the prospective Ward will have a Georgia Advance Healthcare Directive or a Revocable Living Trust addressing incapacity. If the prospective Ward has either or both of these documents, the Court will review them. If the prospective Ward does not have an Advance Healthcare Directive or a Revocable Living Trust, then a petition will have to be filed with the Court to appoint a guardian and/or a conservator. The proposed petitioner should begin the process of petitioning to become a guardian and/or conservator as soon as he/she notices that the prospective Ward is having difficulty managing his or her own affairs.
For my clients, my firm has a
questionnaire that serves as a starting point. The firm’s questionnaire asks for details about the petitioner(s), proposed guardian(s) and/or conservator(s), and any interested parties. It also requests details and the reasoning behind the petition. Courts take these petitions very seriously because once the order is entered, the Ward loses his or her civil rights. In addition to the firm’s
questionnaire, prospective clients should provide me with the following, if applicable:
- Any existing guardianship or conservatorship orders,
- Will, codicils, and trust agreements,
- Real estate deeds and appraisals,
- Admission agreements to hospitals and health facilities,
- Georgia Advance Healthcare Directive,
- Powers of attorney for finances, and
- Retirement plans—including any forms that designate beneficiaries
During our meeting, I will go over the
questionnaire with you, answer your questions, and detail both the process for filing the petition and the duties of a guardian and/or a conservator. We will also discuss any possible challenges to the petition that may arise. It’s also important to note whether the prospective Ward’s Georgia Advance Healthcare Directive assigns a different guardian than the one named in the petition. The firm’s
questionnaire was designed to make the process as efficient as possible for my clients and to create a solid starting point for beginning the petitioning process, which I understand can be overwhelming.
Conclusion
Guardians and Conservators provide essential services to adults who are unable to manage their own personal and financial matters. In addition to providing for the care and/or finances of the Ward, these important roles require the Guardian and/or the Conservator to make annual reports to the Court to provide updates and plans for the upcoming year. It’s crucial to ensure that the most qualified person or persons is assigned to fulfill one or both of these roles, and I can help you navigate the process and keep track of your legal duties as a guardian or a conservator.
