A Strong Offense
A Stronger Defense
Guardianship and conservatorship disputes involve extremely sensitive issues and personal information about the ward. That’s probably why in Georgia, at least, there isn’t an overwhelming amount of appellate authority in this area. At the probate court level, much of the information is kept under seal. Once it goes up on appeal, however, that which was once private gets a very public airing.
In a rare appeal of the appointment of a conservator, the Georgia Court of Appeals gave us guidance on the type of circumstances that justify appointment of a conservator. In In re Cochran, the appellate court considered the case of Sara Cochran who, at 79 years of age, was a serial victim of fraudulent lottery schemes.
In 2007, the Georgia Department of Human Services began to receive reports that Cochran was a victim of financial exploitation. Without rehashing the many fraudulent lottery and sweepstakes schemes to which she was victim, it was apparent that Cochran had lost significant amounts of money to fraud. Cochran’s family filed, and the probate court granted, an emergency petition for the appointment of a conservator to manage her property.
The emergency conservatorship eventually expired and, as soon as it did, Cochran was again preyed upon by the perpetrators of these fraudulent lottery and sweepstakes schemes. After Cochran withdrew $52,000 from her bank to pay the ‘taxes’ owed on her latest ‘multi-million-dollar lottery win,’ her bank reported to the Georgia Department of Human Services that Cochran had been financially exploited.
The Department sent a case manager to visit Cochran, and, based on the investigation (which included the case manager being present for several calls from ‘lottery officials’ asking that Cochran send money), Cochran and her husband agreed to an interview with a psychologist. The psychologist formed the opinion that Cochran lacked sufficient capacity to make responsible decisions concerning the management of her property.
The Department then filed a petition for the appointment of a conservator, supported by the psychologist’s affidavit. The probate court ordered that Cochran be evaluated by a licensed clinical social worker. The social worker also concluded that Cochran lacked sufficient capacity to make responsible decisions concerning the management of her property. Following a hearing, the probate court entered judgment appointing a conservator for Cochran.
Cochran appealed, and the Georgia Court of Appeals agreed with the probate court that appointment of a conservator was appropriate.
Interestingly, the appellate court stated that, if the only evidence was that Cochran played these fraudulent lotteries, that alone would be insufficient to authorize the appointment of a conservator. The court further stated that a person of perfectly sound mind, capable of understanding that the lotteries might be a fraud, nevertheless might choose to play the lotteries as “escapist fantasy and fun.” I’m not sure who would spend, as Cochran did, hundreds of thousands of dollars on “escapist fantasy and fun,” and I suspect that the perpetrators of elder exploitation and fraud will grasp onto this language in the opinion.
It was unnecessary for the appellate court to throw in that bit about “escapist fantasy and fun” because the evidence at the probate court hearing demonstrated that Cochran suffered from cognitive loss that affected her judgment with respect to her financial affairs. This impaired judgment led Cochran to incur significant financial losses. Cochran was unable to remember important details about significant financial matters, unable to understand the consequences of her financial decisions, unable to articulate any facts to support her belief that she had won a lottery, and stated that these scams were not scams because the perpetrator of the fraud had called her.
Given the forgoing, clear and convincing evidence existed to demonstrate that Cochran was in need of a conservator to protect her assets.