What is fiduciary law?
A fiduciary is a person in a position of authority who acts on behalf of another in managing money or property. One example of a fiduciary is a person who has a power of attorney (known as an “agent”) for another person (known as the “principal”). A fiduciary owes the duties of utmost good faith, care, and loyalty to his principal. These duties are the highest duties under the law.
Other examples of fiduciaries are: executors and administrators of decedent estates, conservators of minors and incapacitated adults, trustees, and custodians of funds (such as a custodial account for a minor). A fiduciary is prohibited from putting his own interests before those of his principal. If a fiduciary fails to properly discharge his duties, the consequences can be severe. If you are serving as a fiduciary and need assistance, or if you are concerned that a fiduciary has acted improperly, please contact me for more information.
What is the difference between a guardian and a conservator?
In the State of Georgia, a conservator is a person appointed by a probate court when an incapacitated adult is unable to manage his or her property, or when a minor child needs someone to manage his or her property. A guardian is a person appointed by the probate court when an incapacitated adult has lost the capacity or is not able to communicate significant responsible decisions concerning his or her personal health or safety. In certain circumstances, the probate court can appoint a guardian and/or conservator on an emergency basis. If the probate court denies a request for appointment of a guardian/conservator, another request cannot be made for a period of two years. If you need assistance with issues related to guardianships and/or conservatorships, please contact me for more information.
Who can be appointed as Guardian/Conservator for an incapacitated adult?
Georgia law provides a list of preferences for those persons who are eligible to serve as a guardian or conservator; however, the probate court is required to appoint a person who will best serve the interests of the one in need of the guardian/conservator (the “Proposed Ward”). Although one person may be higher on the list of preferences, the probate court may disregard that person’s position and appoint someone lower on the list of preferences if the probate court finds that it is in the best interest of the Proposed Ward to do so.
The list of those persons eligible to serve is as follows:
-Any person previously nominated in writing by the Proposed Ward;
-A spouse of the Proposed Ward or a person nominated by the
Spouse;
-An adult child or a person nominated by the adult child;
-A parent or someone nominated by a parent;
-A guardian appointed while the Proposed Ward was a minor;
-A guardian appointed previously in Georgia or appointed in another state;
-A friend, relative or any other individual;
-Any other person who is willing to accept the appointment, as long as the person is approved by the court;
-The county conservator.
Do I need a will?
If you want to have control over who receives your property at your death you need a will. If you want to choose the person or persons who will raise your minor children in the event of you death, you need a will. If you want to decide who will handle your estate, you need a Will. If you do not have a will or other testamentary document, such as a trust, any property you own at your death will pass to your heirs according to Georgia law, and the probate court will decide who will handle your estate. In Georgia, there are several requirements that must be met for a will to be valid. If you need assistance with a Will, please contact me.
What are the grounds to contest a will in Georgia?
In Georgia, the most common grounds on which to contest a will are:
The testator did not have capacity to sign the will;
The will was improperly executed;
A later will exist;
Someone unduly influenced the testator to sign the will, or;
The testator revoked the will.
If you think you have grounds to contest a will or if you are facing a will contest, please contact me for assistance.
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