A Strong Offense
A Stronger Defense
Guardianship litigation can be painful and divisive, so you might think that a probate court would rejoice when the parties reach a settlement. But, as the Georgia Court of Appeals explained in In re: Estate of James Irwin Kaufmann (link via FindLaw), the parties’ agreement cannot force a probate court to abdicate its statutory duties when it comes to appointment of a guardian.
A probate court made an emergency appointment of James Kaufmann’s adult son, Rocco, as guardian and conservator of Kaufmann. Later, the probate court appointed Rocco as Kaufmann’s guardian, but appointed Jerry L. Landers, Jr. as Kaufmann’s conservator. Kaufmann then filed a petition for restoration of an individual formerly found in need of a guardian and/or conservator in which Kaufmann requested a restoration of his rights or, in the alternative, appointment of a new guardian and new conservator. The parties mediated the matter and entered into a settlement agreement.
As part of the settlement agreement, Rocco agreed to resign as guardian, Landers agreed to resign as conservator, and the parties would submit to Kaufmann’s guardian ad litem up to three names of candidates for the substitute guardian and conservator. The guardian ad litem could add more names to which the parties could provide comment, and then the guardian ad litem would make a selection and recommendation to the probate court for the new guardian and conservator. The parties agreed they would not object to the court’s selection of a new guardian and conservator.
Kaufmann submitted the names of two potential guardians and Rocco submitted the name of one individual and adult protective services. The guardian ad litem recommended that the probate court select adult protective services. The probate court, however, ordered that Rocco remain guardian of Kaufmann “as it is in the best interest of the ward.”
Kaufmann claimed that the probate court erred by modifying the terms of the settlement by reappointing Rocco as guardian. The Georgia appellate court, however, determined that the parties cannot circumvent the probate court’s statutory duties to appoint a guardian who will best serve the interest of the adult ward and to satisfy itself of certain criteria prior to accepting a guardian’s petition for resignation. Here, the probate court found that it was in Kaufmann’s best interest for Rocco to continue as guardian – and that finding trumped any separate agreement that may have been reached by the parties.