A Strong Offense
A Stronger Defense
A guardianship or conservatorship in Georgia is not necessarily permanent. If a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning his health or safety, a guardianship may be terminated. Similarly, if a ward regains sufficient capacity to make or to communicate significant responsible decisions concerning her finances, then a conservatorship may be terminated. Sometimes, the evidence is clear one way or the other but, at other times, the evidence conflicts.
In In re Loftus a/k/a Serewicz, the Georgia Court of Appeals instructed that, when the evidence conflicts on whether a ward has regained capacity, the probate court must hold a hearing on a restoration petition. In this case, a licensed psychologist submitted an affidavit that the ward had regained sufficient capacity, but a licensed social worker submitted a report that the ward still was incapable of making or communicating significant responsible decisions. Instead of holding an evidentiary hearing to test the credibility of these professionals and the limits of their evaluations, the probate court dismissed the ward’s brother’s restoration petition for lack of probable cause. This was a mistake – under these circumstances where the evidence conflicted, the probate court was required to hold a hearing.
This is the second recent appellate decision where the Georgia Court of Appeals found that a probate court erred in too quickly dismissing guardianship proceedings. While guardianship and conservatorship actions can be borne of emergency situations, the appellate court reminds us that the evidence must be looked at closely and carefully considered and the process under which that evidence is evaluated is important.