Atlanta Probate Lawyer Blog

As an Atlanta Fiduciary Dispute Lawyer, I often come across persons who believe that once someone signs a Georgia Power of Attorney, then it’s over and all control has been surrendered to the person designated. It’s not that simple.

In Georgia, Power of Attorney Abuse is common and a terrible problem. Oftentimes, family members, hired help, and other persons take advantage of elderly or disabled persons through a Abuse or Misuse of a Power of Attorney. The Georgia Supreme Court the Abuse of a Power of Attorney in Greenway vs. Hamilton

As an Atlanta Power of Attorney Abuse Lawyer, I have seen many different schemes to use a Power of Attorney in an unlawful manner. A common theme is the “conversion”, or misappropriation assets using a Power of Attorney, before these assets become part of an estate. This is because assets of an estate are usually much more heavily guarded by the heirs and beneficiaries.
If you believe a Power of Attorney is being abused, there are several options you can take. First, you should seek out a qualified Atlanta, Georgia Fiduciary Lawyer to assist you in your undertakings. Some options your attorney can assist you with are as follows:

• Filing a complaint with adult protective services

• seeking a guardianship and conservatorship in probate court

• Confront the person abusing or misusing the power of attorney

• Talk to other family members about the situation

• Retain an experienced Fiduciary Law Lawyer

TAKE ACTION: THERE IS NO SUBSTITUTE FOR SEEKING LEGAL ADVICE AS SOON AS YOU KNOW ABOUT, OR SUSPECT, ABUSE OF AN ELDERLY OR DISABLED PERSON THROUGH THE ABUSE OR MISUSE OF A POWER OF ATTORNEY

First, a Power of Attorney is only valid if it is executed in compliance with Georgia law.
It must be in writing and properly dated. The party who holds the Power of Attorney has a Fiduciary Duty.

The person signing the document must be legally competent at the time of signing. When the person signing the document has dementia or Alzheimer’s or similar conditions, medical records and opinions from doctors and experienced elder law attorneys can be ways to establish competence.

Second, even with a valid Power of Attorney there is a Fiduciary Duty in Georgia to act in the best interests of the principal who signed over their POA. Thus all decisions must be based on what is best for them, not what is most convenient for the designee (aka Agent or Attorney-in-Fact).

For financial decisions, the legal duty requires the designee to, at the very least, refrain from self-dealing. The designee has a Fiduciary Duty to manage assets prudently with the goal of helping the principal who owns the assets. When the principal has significant assets, following the advice of a credentialed, knowledgeable, and ethical financial planner may be essential. It is also helpful to have an Atlanta, Georgia elder law attorney knowledgeable about spotting unsuitable investments review financial plans, recommendations, and decisions.

Continue reading "POWER OF ATTORNEY ABUSE AND MISUSE LAWYER SAYS POA ABUSE IS A BREACH OF FIDUCIARY DUTY WHICH MUST BE QUICKLY STOPPED" »

A person is qualified under Georgia Law to serve as a Georgia probate court appointed Guardian and/or Conservator of a proposed ward if such person is:

1. Over the age of 18 years of age;
2. A Georgia resident; or a non-resident who is:

(a) related by lineal consanguinity to the ward; (b) a legally adopted child or adoptive parent of the ward; (c) a spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or (d) the spouse of a person otherwise qualified above; and

3. Having been convicted of a felony usually precludes you from being a guardian in Georgia. However, new trends allow the judge to evaluate the felony and its circumstances to determine whether the proposed guardian would do a good job in caring for the ward. By example, a felony conviction for marijuana possession a long time ago may be looked upon by the Georgia County Probate Judge as a learning lesson. And, since it did not involve stealing (or another crime of moral turpitude), then the proposed guardian may be determined by the Georgia County Probate Court to be a safe person and able to care for the ward in a high-quality manner. Lastly, this is true if the guardian and ward are closely related and/or have a close, respectful, and honest relationship.

Moreover, a Georgia county probate judge may give a felon who petitions the court to be guardian of the ward if they are related. This new trend shows the County Probate Judge's discretion in finding a qualified person to take care of the ward.

A Petition for appointment of a Georgia guardian and/or Conservator for the proposed ward will be filed with the GA County Probate Court in which the proposed ward is domiciled. This Petition requires either two Petitioners to sign the document or one Petitioner and the completed affidavit of a physician or psychologist licensed to practice in Georgia or a licensed clinical social worker, who has examined the proposed ward within 15 (fifteen) days prior to the filing of the Petition. In, Georgia, unless the alleged incapacitated person is indigent, the Petition must submit with a check to the GA County Clerk of Court for the filing fees. The filing fees vary slightly per each separate GA County Probate Court.

Continue reading "GEORGIA GUARDIANSHIP AND CONSERVATORSHIP PROCEDURES IN ATLANTA AREA PROBATE COURTS" »