When Elder Law Attorneys Go To Court
In a profession known for disputes and drama, the role of elder law attorneys is often misunderstood. As elder law attorneys, we are planners, not fighters. Even so, there are several instances in which we can and do go to court. In this blog entry, we describe some of the most common reasons why we as elder law attorneys go to court for our clients. (Spoiler alert: There will be no courtroom battles, but there can still be fireworks.)
95% of the time, when we as elder law attorneys are going to Court, we are going to Probate Court. Most Georgia residents know that Probate Court has jurisdiction over decedent’s estates, probably because many of us have had to go to Court to probate the estate of a loved one who has died. Indeed, most of our time in Probate Court is spent helping the Executor of an estate (if there is a Will) or the Administrator of an estate (if there is no Will) properly carry out their duties and distribute the assets of the estate. In some cases, in which there are few if any assets of the decedent’s estate, the estate must be opened for someone to file a legal claim, such as a wrongful death claim. In some counties in Georgia, Probate Court judges administer oaths to Executors or Administrators who are then responsible for probating a decedent’s estate, but in most larger counties, there is a large Court staff who handle such matters without the direct involvement of the judge on every detail.
In Georgia, Probate Court also has jurisdiction over mental health matters, including guardianships and conservatorships for both minors and adults. By definition, any petition to become the guardian or conservator of an adult requires a hearing before a Probate Court judge or a hearing officer (usually a long-serving Probate Court staff attorney who performs judicial functions).
While we do not handle contested guardianship or conservatorship cases in which multiple family members or others are fighting over control of someone’s healthcare decisions and/or assets, we do serve several clients each year in non-contested situations which there is absolutely no alternative but to file for guardianship and conservatorship. The legal standard for guardianship or conservatorship is high: You have to prove that someone is not capable of making or communicating significant responsible decisions about their health and safety (for guardianship) or about their property (for conservatorship). As we warn all of our clients who are seeking guardianship and conservatorship, getting either or both of these powers is not the end of their work, but rather just the beginning, as the Court continues to require regular reports and take an active interest in the welfare of wards under its jurisdiction.
Curiously, Probate Courts in Georgia grew out of two different courts- the “inferior court” (until 1851) which managed county business including jails, roads, and a register of Wills, and the “Court of Ordinary” which continued to exercise jurisdiction over a huge range of issues until 1983, when the Georgia Constitution was amended and modern Probate Courts were created. Today, Probate Courts continue to exercise jurisdiction over a broad range of matters- from marriage licenses to firearms permits and even fireworks displays. In smaller counties across Georgia (with a population under 90,000), Probate Court judges do not have to be attorneys. In some smaller counties, Probate Court judges routinely exercise jurisdiction over matters such as minor traffic offenses.
While we are happy to serve families who need help probating a loved one’s estate or pursuing an uncontested guardianship or conservatorship, don’t ask us to seek a fireworks permit or defend against a minor traffic offense. On the former issue, we don’t have the requisite expertise about fireworks, and on the latter, we will refer to any of several trusted criminal defense attorneys depending on where the alleged offense occurred.
Several times a year, we file a Petition in Superior Court. Superior Court is general jurisdiction trial court- the “workhorse” court of Georgia’s judicial system. Superior Courts exercise jurisdiction over civil disputes (everything from business disputes to divorce and family law matters) and over equitable matters- in other words, matters in which non-legal remedies are applied to create a fair result. Because the law regarding the creation, interpretation, and reformation of Trusts is part of equitable law, any petition regarding a trust in Georgia must be filed in Superior Court. This is not to say that every change or every interpretation of a trust requires a court Petition, but rather that when an otherwise irrevocable trust (such as a trust in a decedent’s Will) must be interpreted, amended, or reformed to achieve a fair result, we must ask a Superior Court judge.
Very occasionally, we will have a case in which there are issues over which both Probate Court and Superior Court will have some jurisdiction. One example of this is a guardianship and/or conservatorship case in which an adult who lacks capacity (a “ward”) or who is alleged to lack capacity (in legal parlance, the “proposed ward”) has ongoing legal issues stemming from a past or pending divorce. The biggest difficulty with such cases involving “concurrent jurisdiction” is that some family law attorneys and even some Superior Court judges are not always accustomed to having another Court (Probate Court) that also has jurisdiction over certain issues in the same case. These cases require us to not only advocate on behalf of our client, but often explain to other attorneys and to a Superior Court why our client has the legal right to make certain decisions or request certain actions by a Court.
Significantly, the Clerk of Superior Courts in each county in Georgia is responsible for maintaining the deed record of all real property in that county. Not a week goes by that we are not filing several deeds across Georgia for clients who are gifting land, placing real estate into a Trust, or adding spousal survivorship language to avoid probate upon the death of the first spouse. Unlike many of our other appearances in Court, we can often file a deed and be out of the Court in less than two minutes.
Last but not least, we routinely attend hearings before an Administrative Law Judge (ALJ) who works for a State or federal government agency such as the Georgia Department of Community Health (which administers Medicaid) or the Social Security Administration (which administers all SSA retirement, survivors, and disability insurance programs). Perhaps the most common administrative hearing we attend is a Fair Hearing regarding a pending Nursing Home Medicaid application for a client. If it has been 45 days since we filed a Nursing Home Medicaid application or we receive a denial (often cursory), we file a Request for Fair Hearing in order to preserve our client’s rights to appeal any unfavorable decision about their application. The vast majority of the time, there is no such hearing required, and we simply communicate with the caseworker to resolve whatever questions he or she has.
We hope you have found this overview of when we go to court to be helpful in clarifying how we as elder law attorneys work with the judicial system in several aspects of our work for clients.