When it’s the right time to pursue conservatorship for your loved one

Conservatorship focuses on financial affairs, managing assets and handling financial decisions for someone unable to do so

'Age-Positivity' Could Be the Key to a Long Life

“I would do it all over again if I had to. I just wish I’d done it a lot sooner,” said Cheryl Tanner of Stone Mountain, reflecting on the difficult decision she made in 2020 to pursue a conservatorship for her father, Wayne Tanner.

A family acquaintance, “Sue,” had targeted Tanner’s father and his life savings while he struggled with declining physical and mental health, including cancer, dementia and loneliness. After attempting to turn him against his family, Sue married the widower and promptly took over his bank accounts, even having herself appointed as the trustee of his revocable trust.

That’s when Tanner felt she had no choice but to retain an attorney and petition the court for a conservatorship to manage her father’s finances, even though the process seemed daunting at the time.

“My father was a good man. He wasn’t exceptionally wealthy, but he did well for himself. He was a do-gooder; he took care of a lot of people. He didn’t deserve what this woman was trying to do to him in his final chapter of life,” she said. Tanner diligently researched ways to protect her father from losing everything. All the information she found pointed to conservatorship as the solution.

The legal fees to obtain the conservatorship cost the family about $10,000, but they saved exponentially more than that, including the nearly $200,000 of her father’s assets required to provide adequate round-the-clock medical care for him during his final year of life. Bed-bound from dementia and advanced cancer, Tanner’s father died in 2022 at 83.

What is a conservatorship?

“In Georgia, guardianship primarily concerns the well-being and personal care of an incapacitated individual or minor, including day-to-day decision-making and health care decisions,” said Alex Johnson, a partner in Bernard & Johnson, LLC, law firm in Atlanta. “Conservatorship, on the other hand, focuses on financial affairs, managing assets and handling financial decisions for someone unable to do so themselves due to incapacity or being a minor. It is common for the court to appoint the same person to act as both guardian and conservator, but it can also appoint different individuals for these roles.”

Cheryl Tanner, right, and her dad, Wayne Tanner, and her sister Michelle. Her sister served as their dad's legal guardian and the conservator was a third party appointed by Gwinnett County.

Credit: Courtesy of Cheryl Tanner

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Credit: Courtesy of Cheryl Tanner

In Tanner’s case, her sister served as legal guardian while a third-party Gwinnett County conservator managed the financial matters. Deferring the money management to a professional greatly relieved the pressure on Tanner and her siblings, and prevented potential conflict while they were caring for their father.

“I felt safe and relieved to have a neutral third party handling the finances, which allowed us to focus on my father’s care,” she said.

A conservatorship or guardianship is court-supervised and is established when a person is deemed incompetent, Johnson explained. “In contrast, a power of attorney is a voluntary arrangement made while the person is still competent, offering a less intrusive and often less costly alternative. However, situations may arise where even with a power of attorney in place, a court-appointed guardianship or conservatorship becomes necessary.”

How to obtain a conservatorship

According to Johnson: “Establishing either a guardianship or conservatorship in Georgia involves petitioning the probate court, notifying family members, representation of the proposed ward by an attorney, conducting a medical evaluation, and holding a hearing. The process aims to ensure the protection of the incapacitated person’s rights while providing for their needs when they cannot do so themselves.”

Tanner said their attorney advised conservatorship proceedings should take 60-90 days on average. However, the COVID-19 pandemic caused significant delays for the family, including a nine-month wait for a court hearing. Because her father had gotten married, the burden of proof fell on his children to show the judge that not only was their father incapable of handling his finances, but so was his wife, who had let many of his bills lapse and remain unpaid. Fortunately, their case was so compelling the judge granted the guardianship and conservatorship the day of the hearing.

When to pursue a conservatorship

A conservatorship may be necessary because of “significant mental decline from diseases like Alzheimer’s, (or) inability to handle personal and financial affairs,” Johnson shared.

For anyone considering a conservatorship for a loved one, Tanner and Johnson both recommend family members communicate openly and hire a reputable attorney.

“When selecting an attorney for conservatorship matters, experience in probate courts, estate law, conservatorship and guardianship law, a track record of successful representation, and an empathetic understanding of family dynamics are crucial factors to consider,” Johnson said.

Cheryl Tanner's dad, Wayne Tanner, who Cheryl said "was a do-gooder; he took care of a lot of people."

Credit: Courtesy of Cheryl Tanner

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Credit: Courtesy of Cheryl Tanner

He added that conservators and guardians, whether a family member or third party, are expected to always “act in the ward’s best interests, keep accurate records, and seek court approval for significant decisions.” They should never commingle funds or make unauthorized decisions.

There are rules and reporting requirements to ensure the best interests and rights of the ward are being protected. For example, in Tanner’s case, they had to report in writing each quarter regarding her father’s health condition and any changes.

“It’s also important to consider the long-term implications of the conservatorship, including the potential for adjustments to the arrangement as circumstances change, ensuring the arrangement continues to serve the best interest of your loved one. Sometimes, people may become more capable of managing their own lives, and their individual rights need to be reasserted, and the court system disengaged, for their dignity and freedom,”

He also suggests people do what they can to prepare for a potential health crisis, while they’re still of sound mind.

“It is well-advised for people to create their estate plans, including executing a will, as soon as possible,” he added. “They should also consider executing an advance directive for health care and a durable power of attorney, if they have specific wishes and/or individuals they would like to manage their affairs. The state of Georgia has forms available on its website that may comply with needed legal formalities.

“If someone loses their mental capacity without having executed a will, that will complicate matters for their loved ones, and it may allow for people to create onerous legal issues for their intended beneficiaries,” Johnson concluded.

Tanner couldn’t emphasize enough how beneficial the conservatorship was for her family and her father’s well-being. “We are fortunate that we were all on the same page as a family,” said Tanner.

Initially, she and her sisters were concerned about how the conservatorship would affect their relationship with her father, but he was amenable to it once he got used to the idea. Her advice to others is to “go with what you feel in your heart and mind,” and just take that first step. She’s thankful to have done so. “We finally got our father back. It was such a relief.”