In In re Wheeler (Ga. Ct. App. 6/6/2023), the Court of Appeals upheld the Probate Court’s decision that (1) there was sufficient evidence to impose a guardianship and conservatorship, and (2) that a neutral third-party be appointed as guardian instead of the person nominated by the ward. Because the reasoning in this case is “thin,” it appears to be a recipe for future mischief.
James Wheeler, 87 years old, was a retired cattle farmer. After his first wife died in 2016, his grandson, Lopez Nunn, and Nunn’s family, moved in to to help care for him. Later, in 2016, Wheeler met and married Maxcine [Caldwell] (technically the opinion doesn’t tell us Maxcine’s last name). Wheeler moved into Maxcine’s house while Nunn remained in Wheeler’s house and continued to run his farm. Wheeler and Maxcine started having health problems, so Robbie Caldwell, Maxcine’s daughter, started helping Nunn take care of Wheeler and Maxcine. After Maxcine died in 2021, Wheeler went back to the farm for a short time before being taken back to Maxcine’s home. There, Caldwell moved into Maxcine’s home, providing paid care for Wheeler for $3,000 per month. At some point in this process, Wheeler had deeded a one-half interest in his home to Nunn, as well as other property interests.
Nunn and his wife filed a petition to have Nunn appointed as Wheeler’s guardian and to have the County Conservator appointed as conservator. Nunn alleged that “Wheeler suffered from dementia, could not perform many activities of daily living, became confused and disoriented when moving about, could not make rational financial decisions, and was at risk for exploitation.” The Probate Court appointed Tina Robinson, a licensed clinical social worker, to perform an evaluation.
Robinson visited Wheeler at Caldwell’s home and issued a report finding that Wheeler “was “alert” and “oriented to person/place,” was moderately anxious, needed a rolling walker to ambulate, had impaired hearing and vision, suffered from dementia and other health issues, needed supervision with activities of daily living, could not read or write, and was at a high risk for falls. Robinson further found that Wheeler was living with Caldwell by choice, was part of a “large blended family [with] discord,” was “well provided for,” and was “vulnerable to others.” Robinson concluded that Wheeler was incapacitated due to “advanced age, cognitive impairment complicated by hearing/vision deficits, anxiety/depression, [and] functional illiteracy” and that he needed both a guardian and a conservator.”
Wheeler objected to the Petition. He denied he needed a guardian or conservator. But if he did, then Wheeler wanted Caldwell to serve. Wheeler said Caldwell was helping him and that he didn’t trust Nunn because Nunn owed him money and hadn’t paid. The probate court then appointed a guardian ad litem.
Wheeler, Nunn, Nunn’s wife, Wheeler’s sister, Caldwell and the guardian ad litem all gave testimony. Wheeler testified that he wanted to live with Caldwell and that he hated and did not trust Nunn. He did not recall deeded land to Nunn and claimed he was tricked into signing documents. Wheeler was unable to identify the current day, month or year and gave confusing testimony about family events. He was unaware that he was paying Caldwell.
Nunn, his wife and Wheeler’s sister testified that when they tried to visit Wheeler, Caldwell monitored their visits and prevented any one-on-one time. They alleged that Caldwell tried to alienate Wheeler from his family. Nunn, Nunn’s wife and Wheeler’s sister all offered lay opinions that Wheeler was cognitively impaired. Although the evidence showed that Nunn’s wife actually drove Wheeler to Caldwell’s home when he began living there fulltime, Nunn also accused Caldwell of kidnapping Wheeler.
Caldwell testified that Wheeler treated her like a daughter. She denied supervising visits. The guardian ad litem “testified that Caldwell’s home was “tidy, homey, cozy, [and] loving”; that Wheeler had his own bedroom there; that Caldwell was a “very thorough caregiver” who made sure Wheeler’s medical needs were met; that it was a “healthy environment” for Wheeler; that Wheeler considered the Caldwells to be his family; and that he was happy there and wanted to stay. The guardian ad litem found no evidence that Wheeler had dementia, but she conceded that she was not a medical professional.” (Emphasis added). The guardian ad litem then noted much animosity between Nunn and Caldwell. She recommended Wheeler remain in Caldwell’s home, but that a county conservator be appointed.
With this testimony, the Probate Court found Wheeler needed a guardian and conservator. The Court found “Wheeler lacked sufficient capacity to make or communicate significant responsible decisions concerning the management of his health, safety, and property “due to advanced age with cognitive impairment complicated by hearing/vision deficits, anxiety/depression and functional illiteracy.”” The court then rejected Nunn and Caldwell for both roles. The Court found Nunn should not serve due to Wheeler’s strong stated preference that Nunn not serve. The Court rejected allowing Caldwell to serve, finding credible testimony was given that Caldwell tried to alienate Wheeler from family members. The County Conservator was appointed as a neutral third party, particularly since Caldwell was being paid for caregiving.
Wheeler appealed. He argued there was insufficient evidence to impose a guardianship and conservatorship. OCGA § 29-4-1(a) and OCGA § 29-5-1(a) prohibit appointment of a guardian and/or conservator unless there is clear and convincing evidence that the proposed ward lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety and concerning management of his property. Wheeler argued clinical evidence is required to meet this burden. Wheeler also appealed the Probate Court’s refusal to appoint Caldwell as guardian if he needed one.
The Court of Appeals rejected Wheeler’s appeal, affirming the Probate Court on both issues. There was no medical evidence to support use of various labels, such as dementia, found in the opinion. And to be fair, the Court of Appeals correctly found medical “evidence is not required to establish incapacity. See In re Copelan, 250 Ga. App. 856, 864-865 (553 SE2d 278) (2001) (“A person’s state of mind or mental condition is properly the subject of opinion testimony, and after narrating the facts and circumstances upon which the conclusion is based, a non-expert witness may express his or her opinion as to the state of mind or mental condition of another.”), overruled in part on other grounds by Williams Gen. Corp. v. Stone, 279 Ga. 428, 431 (614 SE2d 758) (2005).” HOWEVER, the Court of Appeals likely committed error by failing to require that additional evidence be taken. Even though LCSWs are authorized to perform evaluations, and are likely capable of giving opinion evidence regarding whether the ward presently (in the now) “lacks sufficient capacity to make or communicate significant responsible decisions,” an LCSW and the other witnesses in this case would fail any Daubert motion regarding his or her ability to distinguish dementia from delirium. Thus, there was no evidence sufficient to shape the duration (OCGA § 29-4-11(d)(5)(E) and scope of a guardianship and conservatorship “to encourage the development of maximum self-reliance and independence in the adult” and to ensure it was “ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.” O.C.G.A. § 29-4-1(f). None of the witness testimony was competent to inform the court regarding findings required in O.C.G.A. § 29-4-12 and § 29-4-13. So while medical evidence might not be necessary to find an immediate lack of capacity, with a shimmy, the Court of Appeals avoided deciding whether medical evidence is necessary to forge and shape a continuing guardianship. It shrugged off the issue by concluding it could not re-weigh the trial court’s findings.
The Court’s second conclusion is more interesting. Ordinarily, the Probate Court should give deference to the person nominated by the proposed ward when selecting a guardian or conservator. The Court may only ignore the proposed ward’s nomination for good cause shown. Here, the Probate Court rejected Wheeler’s chosen guardian, relying on so-called credible testimony that while under Caldwell’s care, Wheeler was alienated from his family. “In light of the “clear acrimony” between Caldwell and Lopez, the court determined that a “neutral, third-party” guardian would best serve Wheeler’s interests.” The Court of Appeals affirmed, finding family acrimony is within “all relevant factors” the Probate Court may consider when selecting a guardian or conservator. Since there was some evidence to support the decision, the Court of Appeals held there was no error.
Where there is true acrimony, the decision appears to be a reasonable holding. The problem with this decision is that it’s not measurable. It’s not based on any standard, much less a clear and convincing evidence standard. The evidence recited in the appellate decision amounts to a swearing match. The Court’s own guardian ad litem testified Wheeler was in a healthy environment, and that Wheeler considered the Caldwells to be his family; and that he was happy there and wanted to stay with Caldwell. Nevertheless, the Probate Court went with it’s gut because there was some evidence of acrimony and family alienation. The clear and convincing evidence standard apparently goes back in the closet after a guardian and/or conservator is deemed necessary. After that, its gut-check time and the probate court’s discretion is the only measure for determining who is appointed guardian. If all court public conservators were honest, and there weren’t any real-life Marla Graysons, this result here might not be disturbing. This result does, after all, attempt to keep the peace. But it also makes selection of the guardian dependent on what the Probate Judge had for breakfast, and it is nearly impossible to challenge the court’s untethered discretion if “any evidence” supports it. Like it os not, there are real-life Marla Graysons out there and the Probate Court’s gut feeling can’t be the standard for determining whether the person selected as guardian and/or conservator is allowed to serve.
