Articles Posted in WILLS, POWERS OF ATTORNEY, AND HEALTHCARE DIRECTIVES

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As an Atlanta, Georgia Guardianship and Conservaorship Lawyer, I want to emphasize the importance of evaluating a Georgia Probate Courts’ Guardianship and Conservatorship Requirements in determining if a proposed Georgia Guardian and/or Conservator is a suitable to act in the Best Interests of a proposed ward.

Under Georgia Law, to serve as a Georgia Probate Court Appointed Guardian and/or Conservator of a Proposed Ward, such person must have the following qualifications:

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.

Upon the filing of the Petition, the GA Probate Court will decide whether it finds grounds to accept or deny the Petition. If the Petition is denied, the GA Probate court will dismiss the Petition. If the Petition is accepted, the Georgia Probate Court will instruct the proposed ward be served by the GA County Sheriff’s Department with a copy of the Petition, a Notice to Proposed Ward of Proceedings to Appoint a Guardian and/or Conservator, a copy of a Notice of Attorney or Guardian ad Litem that has been appointed to represent the proposed ward. Additionally, if no evaluation has been done, the GA Probate Court will order and evaluation wherein a date, time, and place for the proposed ward to meet, and be examined, by court appointed physician or psychologist licensed to practice in Georgia or a licensed clinical social worker. Following the evaluation, a written report will be filed with the court and an Order and Notice of Hearing will be issued. At the hearing, the Probate Court Judge or an Administrative Judge appointed by the GA Probate Court will conduct a formal and confidential hearing and listen to all interested parties and make a determination whether the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his/her health or safety and/or financial matters.

If the proposed ward is declared “incompetent,” some or all of his or her rights are taken away from him or her and a Guardian and/or Conservator is appointed. A guardian is usually a family member; however, there are professional guardians who perform the duties of a Guardian for several different wards and usually charge an annual fee for their services. The court will issue Letters of Guardianship to the guardian, which serves as his or her court appointed authority to make decisions on the ward’s behalf. The guardian is answerable to the court and must file an initial plan profiling his or her plan for the ward’s care and each year on the anniversary of the issuance of the guardians Letters of Guardianship, he or she must file an annual plan with the GA Probate court.

Any person who is thinking about becoming a Guardian and/or Conservator should engage the services of an experienced Georgia Guardianship and Conservatorship lawyer to guide them through the complicated process of establishing a Guardianship and/or Conservatorship in GA and comply with the preparation of the annual reports due to the GA County Probate Court regarding the well-being of the ward. In addition, any person who has issue with, or who wishes to contest the Petition of a Guardian and/or Conservator for a proposed ward should contact an experienced GA probate attorney. This is also true for the proposed ward as it is can be the case that the proposed ward does not feel they need to have their rights taken away from them and wish to contest these matters themselves. Moreover, it is oftentimes the case that persons will establish a Guardianship and/or Conservatorship over a proposed ward to gain access to the proposed ward’s assets. Moreover, it is often the case that the Guardian and/or Conservator does not have the best interest of the proposed ward in mind and such Petition should be contested.
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Atlanta Attorneys know there are many tools that can be used to facilitate the transfer of assets in an estate plan. Holding property jointly (in two or more names) is one method that has advantages and disadvantages. Joint ownership of real estate, bank accounts, and other property is common because assets owned jointly with rights of survivorship do not become assets of the decedent’s estate. These assets do not pass through probate to be distributed but are transferred by operation of Georgia law and automatically pass outside of the decedent’s estate to the surviving owner(s). When joint owners are spouses, this set up can be ideal. Because there is no delay in the transfer of property under joint ownership, the surviving owner can immediately take control of the property. This is especially useful if access to the property is urgent, time-sensitive, or when financial issues need to be resolved immediately upon the death of the decedent joint owner.

Joint ownership does have its downsides and should be carefully considered before being implemented in any inter vivos circumstances or estate plan. For instance, one scenario where it can be unwise to set up property ownership jointly is when a parent and child are named as joint owners. Problems can arise if the parent has other children who are not included in the joint ownership of the property or the child involved in the joint ownership is financially unstable. With multiple siblings, even if the Georgia will specifies that the joint property should be divided evenly between all of the children, the joint ownership property is not part of the estate. Thus, the surviving owner is not obligated to split the property and distribute it per the Georgia will. This is because the joint property transfers to the surviving owner(s) by operation of law. Thus, the property never becomes part of the estate and therefore is not subject to the laws of intestacy or distribution per the terms of the Georgia will. Also, if the joint owner is a child with financial issues, the parent can lose the property if the child’s creditors endeavor to collect outstanding debts. The child’s joint ownership interest can also be threatened if the parent has financial issues, which cause the parent to declare bankruptcy. This can oftentimes be the case if the parent has significant medical expenses or other expenses associated with growing older and not having earned income.

A Georgia Estate Planning attorney can provide other alternatives to placing property in joint ownership. One good alternative is to draft an effective estate plan that specifies how the property will be divided under a number of possible scenarios. Without a crystal ball we cannot foresee which scenarios are most likely, but they can include illness, remarriage of a spouse, bankruptcy, etc. With such variability, it is prudent to draft a detailed estate plan that can factor in multiple circumstances. Such an estate plan is especially effective for larger estates or in situations where a dispute between heirs and/or beneficiaries may be inevitable. Estate planning under such scenarios often involves the use of revocable and irrevocable trusts and annual gifting. Implementing these types of estate planning vehicles can be complicated and it is necessary to have an experienced estate planning attorney assist you.
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Atlanta Lawyers, Social Workers, Adult Protective Servicesand other persons and/or entities that focus on protecting (or preying upon) the older and aging population of the United States, know it is a common for most families to have an elderly parent who is independent enough to live alone, but who is unable to manage household expenses. In the interest of helping the senior maintain independence for as long as possible, a son or daughter’s name is frequently added to the senior’s bank account to facilitate payment of the expenses. In addition to paying any bills from the account, the joint account holder will be able to keep an eye on the outflow of monies and perhaps oversee any transactions that the senior does make. How the account is set up when the additional person is added, though, can have an impact on the outcome of any Georgia probate proceedings upon the death of the parent.

When creating a joint bank account, inserting the word “or” between the names of both account holders is a simple way to allow for either party to process transactions independently. While this facilitates the payment of expenses as described in the previous example, if one account holder dies, it also allows for all funds in the account to pass to the surviving account holder. When the second person is a spouse or the only surviving relative, this may not pose a problem. But when there are other heirs, a dispute may take place if the heirs feel that they are entitled to a portion of the funds. The question of who receives the funds will be addressed during probate proceedings, as the true intent of the deceased is investigated. Most commonly, the proof of how the money will be divided up is found in the will. But with no will, or if the will does not clearly state how the funds are to be allocated, the court will needs to determine if the second account holder was added only for the sake of convenience or if it was the true intention of the deceased to gift the funds to the second account holder.

When the word “and” is used between two names on a joint bank account, no transactions on the account can be processed without the other party’s signature. This is common in Georgia business partnerships where the inflow and outflow of funds needs to be closely monitored. Under this scenario, in the event that one account holder dies, half of the funds will pass on to the estate of the deceased and half of the funds will pass to the surviving account holder. This set up is not common in family dealings and does not usually cause a dispute during Georgia probate proceedings.

The types of joint account disputes involving family members can be avoided by asking an experienced and qualified Georgia probate attorney to set up a will that clearly defines your desired intentions. Keep in mind that while probate proceedings resolve issues on these difficult and emotionally charged cases, your heirs are the ones who will live not only with the outcome, but also with the consequences caused by any drama that plays out during the proceedings. With the proper planning you can eliminate this turmoil and create a positive experience for your loved ones.
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In my Atlanta, Georgia Probate Law firm, I have helped countless clients involved in estate issues and Georgia probate litigation. While there is no substitute for qualified legal counsel, there are excellent resources online to help individuals understand the complex legal landscape of probate proceedings and estate administration. I often recommend that my clients use these resources to get an initial understanding of this area of law and the unique requirements of the Georgia probate process.

Georgia has a useful website (www.gaprobate.org) that focuses on areas handled by Georgia’s Probate Courts, such as estate planning and marriage licensees. At this website you will find a broad array of information and tools, such as standardized downloadable forms and a resource to locate the Probate Court in your area. The Administrative Office of the Courts of Georgia also has a website (www.georgiacourts.org) that provides standardized forms, information and links to state and national legal agencies and organizations. A third website run by the IRS (www.irs.gov) also provides valuable information and I recommend that my clients use it when doing research on probate and taxes.

These three sites should always be used to download any Georgia probate forms. Other websites may have free downloadable e-forms, but these official websites will have the most up-to-date forms and instructions. Keep in mind that the staff and clerks at the offices of these websites are very knowledgeable, but they cannot dispense legal advice. It is critical to secure legal counsel from an experienced Estate Administration and Probate Attorney for all probate matters. The complexity of the Georgia probate process can derail the administration of estate assets and cost beneficiaries and heirs valuable resources.

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The Atlanta, Georgia, fiduciary and Estate Litigation lawyers have seen a striking increase in the exploitation of the elderly through powers of attorney. Make no mistake about it; abusing the fiduciary duty imposed under Georgia law for the holder of a power of attorney is tantamount to stealing. It is white-collar crime at its worst. Our Atlanta, Georgia breach of fiduciary duty lawyers have significant experience in rectifying the misuse and abuse of a power of attorney. Our Firm is also aggressive in recovery of the exploited funds.

A Georgia power of attorney gives someone else the legal capability and power to act on behalf of another without their presence. Oftentimes, powers of attorney entail taking over extremely important day-to-day affairs of another and usually involve legally taking over their finances. While powers of attorney can be an effective tool to assist elderly and other persons with diminished capacity and ability, they are easily used to exploit the elderly or other persons with diminished mental or physical capacity. What is more, power of attorney documents are easily obtainable and can be purchased in kits from office and legal supply stores or downloaded online, sometimes free.

In these troubled economic times, family members, friends, and other persons have been using powers of attorney for their own financial gain by taking advantage of the elderly through the use of these documents. If this abuse goes unchecked, the assets, and sources of income of an elderly or incapacitated person can be devastated. In fact, the damage done can be limitless and usually is permanent unless it is possible to recover the assets back from the person who abused the power of attorney.

It is sad, but necessary in this day and time to be very guarded and protective of anyone holding a power of attorney. This is as true for a family member. As the old adage goes: It seems to be the ones you are closest to that hurt you the most. In fact, oftentimes, it is the family member or friend who borrows a little money with the characterless belief they will pay it back.

With the economy worsening, the temptation to acquire and/or abuse a power of attorney is ripe for occurring.

Who should I be on the lookout for?

• Acquaintances
• Family Members (especially ones in financial trouble)

• Scam artists

• Someone who befriends an older person
• Any person who exhibits strange and engaging activity, interest, and behavior toward an elderly or person with diminished capacity or ability

Setting up the power of attorney properly to lessen the chance of abuse.

• Seek advice and retain an attorney to create the power of attorney and explain how they work.

• Limit the powers granted under the power of attorney to those duties necessary for the purpose of the document. A “blanket” power of attorney is dangerous!

• Require the agent to provide a semiannual accounting in the power of attorney, which must be provided to a number or responsible persons who understand accounting and willing to take the time to see that the power of attorney is being used appropriately.

• Require the agent to keep all documentation pursuant to the power of attorney, such as receipts, bank statements, a daily or weekly journal or account ledger, etc.

• Consider a court-appointed conservatorship rather than a power of attorney. The courts require reports to be submitted and these are reviewed by the court staff, are public record, and open for inspection.

• It is best to have one person as agent under a power of attorney as co-powers of attorney only create confusion and result in disagreements.

• Should you be acting under a power of attorney for another, keep detailed, hard copy, and electronic copies of all records. Remember, you have a fiduciary duty as you are acting on behalf of another person. You are required by Georgia law to do what is in the best interest of the other person, which may be contrary to your own best interest and wishes.

Our Atlanta, Georgia estate and probate lawyers advocate that any power of attorney should not be entered into without serious consideration, substantial disclosure, and protections in place.


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In my practice as an estate attorney in Atlanta, Georgia, I am often asked about the benefits of having a will. A will is a tool used to distribute an individual’s assets after that person has deceased. As with everything in life, you need a different tool for different jobs. Therefore, if you have made a will and it has been sometime since it has been up-dated or reviewed by an estate planning attorney; perhaps it is time for you to have a lawyer review your plan.

As time passes, state and federal laws change and usually our situation in life changes along with it and we accumulate more assets than what we started with. Too many people make a will and then put it in their safety deposit box and forget about it.

A will can be changed at any time. If the change is minor, it can be done with a document called a codicil, which is an amendment to the will and is usually kept with the original will once it is signed. If the changes are significant, then a new will should be prepared and it will void any previous will dated before it.

Your will should be reviewed on a regular basis every few years to make sure that the estate plan that was utilized in making the will is still the correct plan for you. At The Libby Law Firm, LLC your estate plan will be reviewed by our experts to ensure that the distribution of your assets upon your death will go smoothly with as little expense as possible.
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As a Georgia guardianship lawyer, I often in our Atlanta, GA, Buckhead and Midtown law offices we receive calls from distressed family members wanting to establish a guardianship for a loved one. Of course, many guardianships are established for young adults because of mental deficiencies or unfortunate accidents; but, the greater number of adult guardianships are established for elderly family members.

Unfortunately, most people wait until a family crisis has occurred before they decide to investigate the options that are available to them. The ideal time to speak with an attorney would be before an individual is incapacitated, in a hospital, in a coma, unable to care for themselves, suffering from dementia or Alzheimer’s, or their bills are remaining unpaid. When a person is deemed to lack sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety, it is time for that person’s friends or family to take the appropriate action to protect their loved one.

The initiation of a guardianship is not only an expensive proceeding but it is a very emotional time for both family and friends. Many times hard feelings are made not only by the proposed ward but also by other family members and the ward’s friends.

Although the circumstances surrounding the need to establish a guardianship vary, the procedure remains the same. In Georgia the Court requires that a petition be brought by either one petitioner and a physician, psychologist, or licensed clinical social worker, who will submit an evaluation of the proposed ward based upon an examination within fifteen days prior to the filing of the petition; or two petitioners.

If the Court accepts the petition, it will assign a physician, psychologist, or licensed clinical social worker to evaluate the proposed ward and file their report with the Court and a hearing will be set.
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As an experienced Georgia estate attorney, it is my duty to be up front about the driving force behind this article, which is your death. While nobody likes to think about their own passing, there is nothing more definite than the fact that this will occur. Some people are have heard the old saying that there are two things sure in life: “Death and Taxes” – After many years of practicing law, I have heard about many people who have altogether avoided taxes and been an integral part of assisting many clients in legally minimizing and/or diminishing significant taxes they would have paid without proper estate planning or having consulted our Firm.

Having said this, to date, I have yet to see anyone steer clear of death.

The fact of the matter is, it will happen to you, it’s just a matter of when and how. So, in knowing this, it is essential that you prepare for this inevitable moment; and, the sooner the better. Let’s discuss why.

First, there are many common misperceptions which surround estate planning. The fact is, whether your “rich”, “poor” or somewhere in the middle of these commonly referred to social terms for wealth, we all have some level of need for estate planning and the sooner you engage in estate planning, the more benefits you stand to gain. These range from potential tax benefits you are entitled to and may not be aware of to the peace of mind that your affairs are in order should you become incapacitated, disabled or your inevitable death should occur. Please also be aware that your estate planning is an ongoing process and once your estate plan is in place, it can be altered to keep up with your circumstances, should they change. The Libby Law Firm, LLC, with its client’s permission, memorializes all its client’s estate plans in an easily updateable, editable digital, electronic and physical form.
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