A conservatorship is a legal arrangement that allows an appointed conservator to handle finances for an individual who cannot do so themselves. This person may have been spending uncontrollably, threatening their livelihood, or may be unable to remember their bills due to aging or disease.
However, creating a conservatorship in Georgia requires much more than someone simply being financially irresponsible. It can only be done when someone is legally incapacitated, often due to an illness such as dementia or Alzheimers, where they can no longer fully understand what they are doing with their money.
If you are unsure if it is time to appoint a conservator for your loved one, hire a knowledgeable elder care attorney who will advise you on when it is best to have someone step in.
When an individual is determined to be incapacitated, a conservator is appointed to control their financial matters.
Unlike a guardianship, a conservator does not have any power over the incapacitated person’s personal matters. They cannot make judgments on the individual’s medical requirements, where they live, or what they are eating, as an example.
A conservatorship is appointed by a court. The interested party who will become the conservator must prove that the incapacitated individual is unable to care for their own finances. This may be done after the person has made reckless choices, mismanaged their funds, or abandoned their bills.
Alternatively, it can be warranted when a court determines that the individual cannot make appropriate decisions regarding their property, such as when they are suffering from dementia or Alzheimers.
Unlike a conservatorship, a power of attorney is the choice of the incapacitated person.
A power of attorney is a binding legal document where the incapacitated party previously declared someone of their choosing to take over their personal care or property when they are unable to. A conservatorship is typically filed by another person who notices the incapacitated person’s changed mental state.
Both a conservatorship and power of attorney will require a medical note from a doctor confirming the incapacitated person’s inability to act on their own behalf regarding their finances. Where a conservator must focus on maintaining the incapacitated person, the power of attorney can focus on the property, even working to grow it, such as a business that the incapacitated person owns.
A guardianship is more involved than a conservatorship in that you are handling an incapacitated individual’s personal affairs, not just their finances.
During the court proceedings where the judge determines that the individual is legally incapacitated and requires assistance with their personal affairs or financial matters, they will also rule on the length of the guardianship/conservatorship. This can range from a short period while an individual undergoes treatment or when there is hope of recovery. Or, it can last indefinitely, especially when a person has an ongoing degenerative disease.
In cases where an emergency guardianship/conservatorship is put in place due to the threat of physical or financial danger, the emergency instatement will end when the court removes the guardian, at an effective end date, when a dismissal petition is filed, or within 60 days, depending on the situation.
There are two avenues to become an adult guardian.
The first requires the court to appoint an individual to act as the guardian of the incapacitated adult. When the court makes this ruling on their own, they will seek an individual who is able to take on this responsibility. This could be an adult child, a sibling, or a third party who acts as a guardian for the government.
The second way to get guardianship of an adult in Georgia involves petitioning the courts for appointment. This is when an individual, such as an adult child, notices that the adult in question is losing the ability to care for themselves properly.
Any interested person may file this petition to submit themselves or another qualified individual to the court as a possible guardian. “Interested person” is defined as someone over age 18 who is not a ward of the state, and who has an interest in the welfare of the incapacitated adult.
Before a guardian is appointed, the judge must first rule that the individual is incapacitated and cannot care for their personal affairs on their own. This can be done with a doctor’s declaration or proof of their existing challenges maintaining their daily affairs.
To be appointed as a guardian or conservator in Georgia, a person must be:
Georgia uses an Order of Preference to determine who shall be appointed as a guardian or conservator of an individual. This is a general guideline and the courts may not follow the Order if they determine that someone else is in the best interest of the individual. This Order is:
A “public guardian” is an individual or private entity that is registered with the probate court and has met specific criteria. This allows them to act as an officially appointed Public Guardian for the incapacitated person if they have no one else to serve as their guardian/conservator, or if an existing guardian/conservator must be removed for any reason.
In Georgia, the Public Guardian is also known as the County Guardian, an official who stands in to care for the Ward when no one else can.
To become a Public Guardian an individual must first:
Conservatorship abuse is when someone in control of an incapacitated individual’s finances does not act in the individual’s best interest. This often has the result of decimating the estate of the individual.
Corrupt conservators will abuse their position by hiring “friends” to perform unnecessary tasks and paying them exorbitant fees. Usually, the conservator will keep a large portion of this money for themselves.
If the conservator is affiliated with a caregiving company or product provider, they may hire them and pay significantly higher costs. This is often done when the conservatee does not need these resources, thus allowing the corrupt conservator to continue their financial abuse.
When incapacitated individuals are left unprotected and are not closely watched by family, conservators can easily steal money by claiming expenses that never happened or increasing their fees, claiming that the individual needed them more. This allows them to inflate their time-keeping and their billings.
The most common culprit of conservatorship abuse is family members. These individuals are often mistaken for caring too much, by spending significant amounts of time with the family member and subjecting them to needless assistance. Since they would ultimately get part of the estate, they have an incentive to gain more of the estate so others in the family will inherit less.
Children often know their incapacitated parent’s affairs well. This makes it easier for them to take control of the finances and start stealing things from the conservatee.
In many cases, these individuals get away with conservatorship abuse. They can claim that due to past financial choices on the part of the Ward, their current financial decisions are justified. Or, they can claim that their parents previously offered this instruction.
Without anyone to notice the conservatorship abuse in Georgia, these individuals can get away with decimating an individual’s savings.
Because conservators have complete financial control and can even invest in the name of the conservatee, they are capable of causing significant financial harm.
It is challenging to spot the warning signs of conservatorship abuse. However, if you look closely, you’ll see patterns emerge that show that the conservator is working in their own best interest rather than that of their Ward.
The most common sign of abuse is when someone starts giving “gifts” to new “friends” who have recently started to appear. Or, when they are “investing” or “donating” to a cause that a conservator told them about. This is clearly a conflict of interest and shows that the conservator is focused on the money, not the individual.
Be wary of any sudden limitation imposed upon you by the conservator. Are you unable to see your loved one? Have they been restricted from seeing other friends or family?
This is a common abuse tactic that aims to separate an individual from their loved ones to make them vulnerable and allow the conservator to continue perpetrating their abuse.
If there is an influx of new attorneys, caregivers, and “friends” doing tasks, this is a red flag. Take the time to vet these individuals yourself and to understand their fees so you can spot if your loved one is being taken advantage of.
If you notice that your incapacitated loved one is having finances lapse and things go unpaid, this is a sign that the conservator is not performing their duties. They are likely focused on taking the money for themselves and forget to maintain the illusion of care for your loved one.
It is vital that you stop an abusive conservator as soon as possible. The longer they are allowed to steal from a Ward, the more potential they have to take everything.
Conservators must agree to a Conservator Bond when they take on their role with your loved one. This bond is built-in protection to prevent them from stealing money. You can claim finances against this bond if you notice that money is being misused, that the individual is perpetrating fraud, if they are actively stealing or denying the conservatee’s wishes, or if they are otherwise performing acts that are not in the best interest of the incapacitated person’s finances.
However, this doesn’t mean that the conservator will be removed.
If you are so concerned that you want the conservator removed immediately, you can petition the court to replace the current conservator. You can even do this without making a claim against the bond.
Work with a skilled elder abuse attorney to ensure your success. By working with a lawyer who understands the conservatorship laws in Georgia, you can be sure that your case will be properly presented to the courts. They will help you develop an effective strategy to move forward so your loved one will be safe.
Even if you aren’t certain that abuse is occurring, it is better to conduct an investigation before things go too far.
Bridges & Farmer have been working to protect elderly victims for decades. Our experienced legal team understands that people in vulnerable positions can be taken advantage of by those who love them most. Families often don’t want to believe that their sibling could do such a thing to their parent and use excuses to not investigate until it is far too late.
Your loved one deserves your care. Call Bridges & Farmer today to discuss your situation. We can help you determine the next steps to take. If abuse is being perpetrated, we can ensure that the abuser is removed from their conservatorship so your loved one is safe.
Not all conservatorships end at death.
If a court rules that an individual is incapacitated indefinitely, then a conservator will be appointed to care for the ill individual’s finances for the rest of their life. This prevents the need for repeated trials to appoint conservators if it is understood that the incapacitated person has no chance of getting better. For example, this might be used for a patient with dementia who is increasingly unaware of their surroundings. The individual is not expected to recover and may get worse as time goes on. Their conservator will continue to care for their finances until their death.
However, in Georgia, conservatorships are not always indefinite.
Conservators can be appointed to care for an individual’s finances for a set period of time. These conservatorships have a fixed end date, such as three months from the appointment. In some cases, it is deemed that an individual is unable to care for their finances for a period of time. A court recognizes that they may be able to care for them again in the future. This is why a judge would opt for a fixed-term conservatorship.
Lastly, if a conservatee’s assets are drained, then there is no continued need for a conservatorship. In this case, it will be terminated.
All conservators are appointed in a court. However, a court-appointed conservatorship means an individual has not petitioned to be the conservator for the incompetent individual. In this case, a judge will decide that there is a need for a conservator and select this individual themselves.
A court-appointed conservatorship may involve a Public Guardian, a third-party employee whose job it is to care for an incapacitated person’s affairs. This person may never have met the incapacitated individual before but is certified to act in their best interest.
It is extremely challenging to decide to appoint a conservator for a loved one. You are putting your loved one’s financial future in the hands of a person you hope you can trust. If they prove unfaithful, then you risk your loved one’s safety and comfort going forward. Since most victims of conservator abuse are elderly, they could be prevented from getting the treatment they need or moving to a safer accommodation due to the loss of their finances.
Protect your loved one today by hiring an experienced elder care attorney who knows how to vet a conservator. We understand that this is a challenging decision, so we work to remove the doubts any parties may have. Work with us today to ensure your loved one is treated appropriately.