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In re Loftus

Court of Appeals of Georgia

March 19, 2015

In re LOFTUS

Guardianship. Fulton Probate Court. Before Judge Koll.

Smith Moore Leatherwood, G. Marshall Kent, Jr., R. Milton Crouch, for appellant.

Hurley Elder Care Law, Danielle C. Cefalu, for appellee.

OPINION

Page 39

McFadden, Judge.

Catherine Mary Loftus a/k/a Catherine Mary Serewicz (hereinafter, the ward) currently is the ward of two of her adult children, both of whom serve as her co-guardians and one of whom serves as her conservator. Her brother, Thomas J. Loftus, petitioned the probate court to terminate the guardianship and conservatorship and restore her rights (hereinafter, the restoration petition). The probate court dismissed the restoration petition for lack of probable cause without first conducting a hearing. The record, however, reflects probable cause such that the probate court should have conducted a hearing on the petition pursuant to OCGA § § 29-4-42 (b) and 29-5-72 (b). Accordingly, we reverse the dismissal of the petition and remand the case for further proceedings.

Georgia law permits " any interested person" to petition to terminate a guardianship or conservatorship and restore the ward's rights. OCGA § § 29-4-42 (a); 29-5-72 (a). If the petition and its supporting affidavits give rise to probable cause that the guardianship or conservatorship should be terminated, the court shall order an evaluation of the ward. OCGA § § 29-4-42 (b); 29-5-72 (b).

If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that the [guardianship or conservatorship] should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing[.]

OCGA § § 29-4-42 (b); 29-5-72 (b).

[331 Ga.App. 330] The relevant issue in determining the appropriateness of a guardianship or conservatorship for an adult is whether the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety (in the case of guardianship), OCGA § 29-4-1 (a), or his or her property (in the case of conservatorship). OCGA § 29-5-1 (a). The record in this case contains evidence indicating that the ward now has the necessary capacity to make or communicate these decisions. It contains the notarized statement of the ward's brother, expressing his belief that she was able to " make sound decisions regarding her own welfare." It contains the affidavit of a licensed psychologist stating that he had examined the ward on January 23, 2014, and found her to have sufficient capacity to make or communicate significant responsible decisions concerning her health or safety and concerning the management of her property. In support of this finding, the psychologist cited the ward's coherence, understanding, and awareness during the evaluation and her performance on an assessment test. Among other things, the psychologist noted that the ward " had perfect performance in several areas [of the test] that have to do with overall cognitive ability." He concluded that the ward was not experiencing dementia or delirium and stated that

there is no question that [the ward] is not mentally incompetent and in some areas her performance is remarkably good. She appears to have a good general understanding of verbal and numerical concepts, is aware of her surroundings, and is able to express herself and use humor in social interactions.

And the record contains a report from a Ph.D. candidate in clinical psychology who on January 27, 2014, performed a limited evaluation on the ward, during which the ward was alert and oriented, was capable of conversing normally, and displayed " thought processes [that] were logical and coherent."

The record also contains evidence that the ward is not capable of making or communicating such significant responsible decisions, specifically the report of a licensed social worker who had evaluated the ward in connection with guardianship and conservatorship proceedings a year earlier and who, on March 12, 2014, performed a court-ordered evaluation on the ward in connection with the restoration petition. (We disagree with the brother's argument that the social worker ...


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