April 26, 2010
Recently, I was required to testify in Probate Court in a guardianship/conservatorship hearing involving a client of mine. The client had appointed her daughter attorney-in-fact and health care agent several years ago. However, the client's son, who lived with the client, did not want his sister to admit their mother to a personal care home, which necessitated that the family homeplace be sold.
Both the brother and sister sought appointment by the Court. A crucial finding in the Judge's Order was that, while competent, my client nominated her daughter to be guardian and conservator. According to O.C.G.A. §§ 29-5-3 and 31-32-5, a competent adult may nominate (in writing) a person to serve as guardian and/or conservator. That nomine must be given top priority by the Court.
Normally, when we prepare powers of attorney and advance health care directives, we assume that they will effectively avert the need for the appointment of a guardian or conservator. This case illustrates how important it is to include nomination language in these documents just in case it does become necessary for the court to appoint a conservator or guardian.
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