Probate Court May Restrict a Conservator’s Power to Spend Ward’s Income

In In re Estate of Jenkins, 358 Ga. App. 254 (2021), the ward (Shaun Jenkins) sustained profound injuries as an infant due to malpractice. Jenkins received a settlement giving him annual income of $337,000 (or about $28,000 per month). The probate court limited the Conservator’s spending to $17,000. In 2019, the Conservator purchased a disabled-accessible van for Jenkins, which exceeded the monthly spending approved by the Court, but did not exceed Jenkins annual income. The Probate Court decided this was an unauthorized encroachment and ordered the Conservator to appear and explain himself.

The Conservator appealed the Probate Court order, arguing that under Georgia’s conservatorship statute (OCGA §§ 29-5-1 et seq.), he had authority to spend all of the ward’s annual income without prior probate court approval if the expenditures are reasonable and in the ward’s best interest. On appeal, the Court of Appeals agreed that, generally, the Act gives Conservators authority to disburse annual income without prior approval so long as the disbursements are reasonable and in the ward’s best interests. However, the Court held that the Act authorizes probate courts, in the exercise of their sound discretion, to enter orders limiting that authority. Specifically, Section 29-5-23(a)(1) of the Act pertinently provides that,

[u]nless inconsistent with the terms of any court order relating to the conservatorship, a conservator without court order may[ ] … [m]ake reasonable disbursements from the annual income or, if applicable, from the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30 for the support, care, education, health, and welfare of the ward and those persons who are entitled to be supported by the ward. (Emphasis added)

Although the default position is that the Conservator, not the Court, makes decisions regarding how to disburse the Ward’s income, the Probate Court has broad oversight authority and can issue an order inconsistent with the default position. The Conservator’s plan for managing, expending, and distributing the ward’s property … must be based on the actual needs of the ward and take into consideration the best interest of the ward. The Probate Court is not required to approve a plan that includes waste. With this in mind, the question was whether the Probate Court abused its discretion by limiting the Conservator’s authority. The Court of Appeals was concerned because the record offered no explanation for why, in most of the years preceding the order on appeal, the probate court repeatedly chose to constrain Sams from exercising the full breadth of authority contemplated by the Act. Unfortunately, the record on appeal did not include the testimony heard by the Probate Court. “Where no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and the courts presume they have properly discharged their official duty.” Carson v. State , 241 Ga. 622, 624-625 (2), 247 S.E.2d 68 (1978) (citations and punctuation omitted). This presumption extends to court proceedings. Holmes v. Roberson-Holmes , 287 Ga. 358, 361 (1), 695 S.E.2d 586 (2010). As the appellant, Sams carries the burden of showing error by the appellate record. Boles v. Lee , 270 Ga. 454, 455 (1), 511 S.E.2d 177 (1999). “[W]hen that burden is not met, the judgment is assumed to be correct and will be affirmed.”

Under the circumstances of this case, although we are concerned by the probate court’s repeated decisions over the years to enter orders inconsistent with the authority given to Sams by OCGA § 29-5-23(a) (1) to disburse Jenkins’s annual income without court order, Sams has not met his burden as appellant of showing by the record that the probate court erred in the particular order on appeal. So we must affirm.

Beyond learning that a probate court can alter the statutory default by order, this case demonstrates why counsel should bring a court reporter to any contested hearing. Absent a complete record, the presumption is that the decision below should be affirmed.

This case was distinguished in In re Estate of T. M. N., 369 Ga. App. 199 (2023). There, the probate court “did not simply limit Jessie’s disbursements of income; rather, the court issued a blanket prohibition on any income disbursements and thus eliminated the authority of Jessie in her role as conservator to make any income disbursement decisions over the ensuing year without court pre-approval. The probate court’s reliance on Jenkins thus was misplaced.” The court of appeals also noted that the text of the statute relating to adult conservatorships and those for minors is different.