Legal Question in Wills and Trusts in Georgia

My father is 80 years old and just spent almost 2 months in and out of hospitals and rehabilitation facilities. He has no living will, no durable power of attorney the only document in place is the Georgia Advance Directive for Healthcare which my older sister is listed first on, i am second and my older brother is third. I need to know how to gain legal rights to his estate as well as his healthcare decisions due to the fact that he is no longer capable of making decisions on his own, he can not walk, he is completely inmobile and due to the fact my older sister (mentioned above) is on disability and is acting as his caregiver. I am afraid for is well being. Please help!

Asked on 6/12/13, 3:01 am

2 Answers from Attorneys

Glen Ashman Ashman Law Office

It sounds like you will need to speak with a lawyer to determine if he needs a guardian and conservator, a big step, and also to have him speak to a lawyer to determine if he is competent to still make a will and POA.

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Answered on 6/12/13, 6:54 am

Your father already has what sounds like a living will and healthcare directive. The way for you to gain control is if your father chooses and if he is still mentally competent then he can revoke the existing health care directive and make a new one.

However, these decisions are for your father to make not you. If your father is no longer mentally competent, then a revocation and new financial and health care power of attorney is not going to work. In such case, you can apply to the court in which your father resides to become his financial and/or healthcare guardian. GA calls financial guardians conservators. A healthcare guardian would be able to make healthcare decisions for your father. To obtain guardianship, you cannot just show that you are concerned because your sister is disabled. You have to prove that your father is mentally incompetent to make decisions for himself and that you are the best person to be in charge of such decisions.

Conservatorship/guardianship is a legal proceeding. There will be a hearing at which evidence is presented. Medical evidence of incompetency will have to be proven and your father definitely and possibly sister may be parties and called to testify. To best maximize any chance for success, I suggest that you consult with an elder law attorney who practices in the area of guardianships for adults in the county in which your father resides.

If your father is mentally competent, then the attorney may be able to draft the financial and healthcare powers. Some attorneys will even come and visit your father if he is bedridden but mentally competent. An ethical attorney will want to meet privately with your father and discus your father's wishes with him.

It might also be wise for you, your father and sister, before you call an attorney, to sit down and have a family meeting and air your concerns. Your primary concern should be on the well-being of your father and seeing that his needs are met and determine how best to effectuate this. However, if there is no way that your father is mentally competent, then I would call a meeting of your siblings if you are on relatively good terms with them. I would discuss the need for a guardianship for healthcare and finances for your father. It may be that one person can be a healthcare guardian and the other a conservator over finances and real property. The healthcare guardian should be someone who lives with or near your father and who is capable of caring for his healthcare needs. The conservator should be someone with financial common sense who will be diligent about managing your father's money/property and paying his bills. Having a family meeting will go a long way towards reducing legal expenses. However, if its not possible, then talk to the elder care attorney on your own.

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Answered on 6/12/13, 12:02 pm

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