Understanding Georgia Guardianship for Nursing Home Residents (Part 1)

This is the Nursing Home Abuse Podcast. This show examines the latest legal topics and news facing families whose loved ones have been injured in a nursing home. It is hosted by lawyers Rob Schenk and Schenk Firm of Schenk Smith LLC, a personal injury law firm based in Atlanta, Georgia. Welcome to the show.

Schenk: Hello out there and welcome to the Nursing Home Abuse Podcast episode number 48. My name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: And we are trial attorneys focused on the areas of nursing home abuse in the state of Georgia and we happen to be your co-hosts for this podcast. Lots of good things in the horizon. We have another guest. It’s been a while since we’ve had a guest. It’s been what? A couple months? Guests are few and far between on this show, not for lack of wanting or desiring to speak with people, but a lot of technological advancements have to be overcome – no, a lot of technological hurdles have to be overcome so we can bring them on the show.

Smith: But I’ve found a solution to most of those. I have advanced the technology for the show and figured everything out.

Schenk: If Will and I’s law firm was a super team, Will would be like all of the superheroes, and I would be that one character that is the human, like usually a teenager or young kid that’s just there for the point of view of the regular humans. That’s what I would be. Will is the strong guy…

Smith: The smartest.

Schenk: The smart lady.

Smith: The most handsome, everything.

Schenk: Yeah, everything. And I’m the little monkey that can turn into an ice bucket.

Smith: Yeah, that’s not true.

Schenk: But speaking of ice buckets, this cool as a cucumber guy is our next guest on the podcast. Will, who is it?

Smith: Paul Black. So Paul and I went to law school together and we’ve known each other for about 10 years, which is hard to believe. But Paul is a partner at Georgia Elder Law of Brannon Black along with his other law partner Chris Brannon in Atlanta. Paul’s experience as the son of two parents with big health challenges is what led him to the work that he does today. He’s an elder care attorney. His mother wrestled with early onset Parkinson’s disease for 27 years before her death in July of 2016, and his father suffered a major stroke in May of 2001 and he currently lives in assisted living in Atlanta. His activity in his parents’ care gave him firsthand knowledge of the challenges that not only caregivers and their families face but also the individual elderly in situations like this.

While attending Georgia State College of Law with me, Paul gained valuable experience interning at two senior-oriented divisions of Atlanta Legal Aid Society, the Georgia Senior Legal Hotline and the Senior Citizens Law Project. After graduation of judiciary law, Paul was chosen from dozens of applicants nationwide as one of three Borchard Foundation Law and Aging Fellows from 2010 and 2011, and when he comes on, I’m sure he will correct me for the pronunciation of that.

After completing his fellowship in late 2011, Paul launched his own private practice. He then joined Chris Brannon to found Brannon Black in 2014. Today, Paul finds great satisfaction in serving clients across Georgia who need help with elder law issues, and this includes Medicaid and veterans benefits eligibility issues, guardianships and conservatorship, estate planning and administration and special needs planning. In 2006, Paul was named rising star in the area of estate planning and is a member of Georgia’s legal elite by Georgia Trend Magazine.

He is a native of Albany, Georgia, which I believe is the correct way to say it. Paul now resides in Clarkson, Georgia. He enjoys hiking, camping, all kinds of dancing…

Schenk: No way. All kinds – from swing to contra.

Smith: Contra to zydeco.

Schenk: Contra was a great Nintendo game.

Smith: That’s not what this is.

Schenk: Well welcome to the show.

Smith: Welcome, Paul.

Paul: Thank you guys so much for having me. I appreciate it.

Smith: Absolutely.

Paul: You want to talk about this dancing thing first for a second?

Smith: Yeah, can we do that?

Paul: That’s a funny story. So I had a tough breakup back in May of 2011 and I was looking for ways to get out and be social, so I started going to swing dancing, and the addiction grew from there as sometimes happens.

Smith: Okay, so what is contra?

Paul: So contra is actually – it’s a series of Scots-Irish dances. It’s probably best described to most people as square dancing, but just down the road from my place in Clarkson, there’s actually the Clarkson Community Center, which has the longest-running contra dances in the southeast and one of the longest in the country. So lots of – how can I say this without sounding weird?

Smith: I don’t think there’s a…

Paul: Probably like jigs and reels of line dancing – if you were to go back 400 years ago to Scotland or Ireland, the dancing they did then would not look a whole lot different from what contra is today. And what I love is you have people 8 to 80 who are doing it, so it’s a really amazing community.

Smith: Well that’s awesome, man. I’ve always wondered this, like in 100 years from there, there’s going to be a Paul Black who’s going to be like, “Yeah, I do what’s called break dancing and hip hop.”

Schenk: If you were to have gone to the streets of Sautee Nacoochee early 2000, you would have seen people doing this type of dancing.

Smith: No, if you’d gone to the streets of Sautee Nacoochee in the early 2000s, you’d see people doing contra and clogging. Clogging was big where I come from.

Paul: Yeah, I’m not a clogger to make that clear.

Schenk: Well Paul, thanks for coming on. So kind of the point of today was to get a basic understanding of the guardianship process in the state of Georgia, what that entails, who needs it, why they need it, what are the processes and procedures for it. So we oftentimes will have clients come in the door and they are concerned about their loved ones that are in nursing homes and there’s no power of attorney, there’s no guardianship, there’s no conservatorship and we kind of point them in the direction of somebody like yourself, depending on the health status of the loved one that’s in the nursing home, into the guardianship process. So just from a 40,000-foot view, can you go through what all that is and what that entails?

Paul: Sure, I’d be glad to. First and foremost, I will say that guardianship is about health and safety decisions. Conservatorship is about financial decisions. If it’s at all humanly possible to avoid going to probate court to have to go through a whole crazy process, we like to avoid that. But there are some cases where people just don’t have the capacity to make or communicate significant and responsible decisions about their health or their safety or about their finances. And that word salad that I just threw out, that’s actually the Georgia statutory language about guardianship and conservatorship.

One of the big challenges is Georgia has 159 counties, each with its own probate court judge. Every judge is going to interpret that statute and apply it a little bit differently, so you have to know the judge. You have to know how he or she will respond to circumstances. For nursing home residents, one of the biggest challenges we see in our practice is the family often has unrealistic ideas of whether Mom or Dad or someone has the capacity to sign a power of attorney or a healthcare directive. And if we go and we meet with the resident and they just flat can’t even have a basic conversation about what they want or they don’t understand who we are or why we’re there, that’s when guardianship or conservatorship become necessary.

Smith: Not just, “Hey, we think Mom wants to – she’s nearing the end of her life and she’s wanting to take all the money she has and give it to one of these televangelists on television and we think that’s a horrible idea.” That’s not sufficient, right?

Paul: No it’s not, but I will note, there are two kinds of forks to that discussion. One is that if a senior is giving his or her money or any of us is giving all of our money away to a lottery scammer and we realistically believe, we actually believe somebody is going to give us money in return, we have had conservatorship petitions where we have helped a family member file on behalf because they’re concerned about a parent or someone else who really has unrealistic expectations about winning money and they’re spending everything and they just don’t understand what they’re doing anymore.

In contrast, if Will and I spent our life savings in going out and buy a brand new Ranger Bass Boat and F-150, the King Lariat edition, which is especially nice.

Schenk: Nice.

Paul: I thought you’d appreciate that, Rob.

Schenk: Yes.

Paul: So we’re ordinary people who make stupid financial decisions – that is not a basis for conservatorship. And one of my favorite, I’ll call it a red tail moment, was two or three years ago in Fulton County probate court, and this is a creative case, but it kind of shows you where the bright line is. A gentleman in his 70s was having unprotected sex with Waffle House waitresses of childbearing age. He was giving them cash and buying them cars as a quid pro quo. He was driving recklessly. His life was a mess. But he was still able to pay his own bills. He understood the concept of money, but the way that he was spending it, the way that he was living his life, met with his children’s disapproval. And I thought, “Oh my gosh, this is crazy. This guy is completely reckless. If he doesn’t need a guardian and a conservator, who does?” I was wrong. And what the probate court judge said in that case is, “While he is reckless, while he makes some really questionable decisions, he’s endangering his safety and that of others around him, he is spending his money recklessly, but he still understands what he’s doing. His values are just not what you or I or his children might want. He doesn’t need a guardian.” And then she said, “If everybody who made reckless decisions about their health or their safety or their money needed a guardianship or a conservatorship, we would have lines of people around 285 to be processed for guardianship.” She said, “It’s about the inability to make those decisions, and this guy is able. He’s just making really dumb decisions.”

Schenk: Okay, so from a health component, being able to determine if somebody has cognitive capacity to make a decision is one thing, and that’s almost like an objective formulation you can have there with regard to what you’re talking about. That’s interesting because what is the test? How do we determine whether or not that this individual knows what he’s doing and understands that, “I like young girls at Waffle House?” that kind of thing?

Paul: Yeah, and that is the top question. And so applying it – I would argue that it’s actually not objective because the statute has language, but what does it mean to be unable to make or communicate, to make a responsible decision? So what decisions are significant? What decisions are responsible? An easy case would be someone who cannot cook her own meals at home anymore. She has nearly set the house on fire many times. I actually spoke with someone in this exact situation about three weeks ago, and her three living sons were all present. And we had – it actually kind of amused me – they talked about the elephant in the room, and for her that was her inability to live safely at home and while she didn’t have the money to pay for care home, she was not able to live there safely. She had been living with one of her sons for two months. It was putting a huge strain on his marriage. But we had a conversation with her about what her care needs actually were and why certain decisions that she thought she could make, she actually could not make.

In her case, one of the big things that was a huge red flag – she did not understand money anymore. She did not understand how much a dollar was versus $100. She was not able to pay her own bills. Thank goodness she had enough capacity to say, “You know, I don’t want to go through a guardianship or conservatorship. I’m not happy about this, but I trust my sons. I want them to serve as my healthcare agents, and I want the eldest and middle son and the youngest to serve as my durable financial power of attorney.” And so ideally we’re able to avoid guardianship or conservatorship by getting those power of attorney documents, but in some cases, it’s just too late.

Smith: I had a question, Paul. I went to, earlier this month, I went to the CLA at the state bar at the guardianship-conservatorship program and got to hear a judge’s panel talk and a lot of other interesting issues come up. And one of those was supportive decision making.

Paul: Yes.

Smith: Can you explain what this is because this is not what we do, and I went to try to get a little bit of knowledge so I could help clients decide what attorneys they needed to talk to, and I had never heard of this before.

Paul: Right. So it’s a gray area between an adult who fully has capacity who’s making decisions knowingly and hopefully making good decisions, and a guardianship or a conservatorship for the court is literally stripping your rights away and empowering somebody else to make these decisions.

Smith: Okay.

Paul: Will, the basic idea of supportive decision-making is rather than the extreme or the nuclear option of an guardianship order or a conservatorship where the court says, “Paul, you can’t make decisions about where you live. Will is your guardian now. He’s going to make those for you” or “You can’t make decisions about your money. You don’t know how to pay your bills. Will is now going to be doing that for you,” – rather than that, what supportive decision-making wants to achieve is to guide that adult with the diminished capacity, have someone with more power than an agent under durable power of attorney but less power than a conservatorship. It says, “Paul, what you’re doing right now is really bad. Rather than spending your money on foreign lottery sweepstakes or on these scams, you should spend it more here at home so you can live here and not be in assisted living or not be in skilled nursing.”

Here are the challenges though, Will. Supportive decision-making is a nationwide movement. It’s been around for 20 or 30 years. It’s a very justified, very understandable reaction to a lot of the abuses that occur in the guardianship process across the country. The challenge is getting the local states to put this in place, to change their statutes. There’s an annual conference called The Wingspan that is all about supportive decision-making as an alternative to guardianship or conservatorship. I would love to see it take off in Georgia, but to my knowledge, there are very few if any instances of courts recognizing this and supporting this idea of supportive decision-making here in Georgia. I hope that changes because I think probate courts, as we have a huge generation that’s aging, we have 10,000 folks with the U.S. Attorney turning 65 – they are besieged with all types of work. They are beyond capacity. We see that every day. If we were able to reduce the number of guardianships, it would be great for the individuals to not have their rights taken away. It would be great for the courts to manage their workload. It would result in more autonomy and hopefully less conflict.

Smith: So let me ask you this – so when you do the nuclear option of guardianship, are you giving away every single right? I mean can you still vote? Can you marry? Do you have any rights whatsoever?

Paul: The short answer – and I’m going to qualify this in a moment, Will – the short answer is no. Most guardianships issued by a probate court judge strip the individual, who is then called the ward, the person who’s kind of yoked under guardianship, it strips them of their ability to make decisions about where they live, their ability to make decisions about the kind of medical treatment they receive in some ways.

And there are some qualifications. A guardian cannot force a ward to take medications, and I had two conversations this week with potential clients where they have an adult child who is schizophrenic who is refusing medication. Can a guardian force his ward to take his or her medication? Legally, no. Can a guardian direct someone to go into inpatient or health treatment and medication might be part of that process? Actually, yes.

So one of my great frustrations and one of the reasons why I try to avoid guardianship is exactly what you identified. Stripping somebody of all their decision-making rights, their ability to decide where they live, their ability to marry, their ability to vote, that’s very violative of a person’s autonomy. It’s one of the most humiliating things you can do, and if it’s at all possible to avoid that, we do. In some cases, we’ll use what’s called a limited scope, where we say we only want guardianship or conservatorship for this one, narrow purpose, but not every situation enables that.

Schenk: And that’s what, getting back to that judge in that case you mentioned, the default rule is that every adult person, the default setting is that we should manage our own affairs. I can understand that coming from that standpoint.

Paul: And I tell that crazy story of the Waffle House guy as I call him often because it shows that we can be stupid and reckless, but yet we have the ability to make our own decisions, good or bad, until a judge takes that away.

Schenk: Right. So Paul, tell me this. Let me put it to you this. So I guess it’s better from a broad standpoint, if possible with your loved one in a nursing home, is to first, the order is you want a durable power of attorney if you want to be able to make decisions on behalf of your mom. Do that first, but if it’s too late in terms of either cognitive capacity or one of the lifestyle choices that we mentioned before that would warrant a guardianship, that would be the next option. That’s the sliding scale, right?

Paul: It is, and this is a problem. And Will should know this with his questions about supportive decision-making a couple minutes ago. There’s a huge leap between me signing a healthcare directive or a financial power of attorney to empower Will to make decisions for me. That’s a volunteer act where I am the principal. Will is my agent in carrying out my wishes. That’s a far cry from Will filing a petition in probate court in DeKalb County saying, “Paul can’t make these decisions. I need to make this decision for him. All his decision-making rights need to be taken away.”

Smith: So one of the issues that we find a lot of the people dealing with, and we catch it once it gets to a certain level, and that is gradual decline of cognitive ability. So you’ve got a loved one who has Alzheimer’s or dementia, and they aren’t – at one point, you don’t just wake up one day and you’re at the very end of the spectrum here. It’s a slow, gradual decline. So we talk to families who will have a loved one who has this, and they don’t do anything during the decline because they’re feeling hopeful or powerless or whatever reason, and by the time they come to us, that family member has zero ability to do anything. Their cognitive ability is completely lost, their mental ability to recognize what day it is, what time it is. So these are people who cannot sign agreements, cannot sign a HIPAA for us to…

Schenk: Can’t check themselves in a nursing home.

Smith: Yeah, and the biggest problem for us is they’ll come to us and it’s like, “Look, I can’t get their medical records because no one has that power of attorney.” So is there some benefit to getting a full-blown guardianship or is there something the people can do once they notice a loved one is slowly declining that will allow them that kind of power?

Paul: Oh my gosh, yes. And to be very plain, your practice and our practice have two big things in common. Number one, most of our clients for us as elder law attorneys are older adults or they otherwise have diminished capacities. So capacity is a huge issue that we have to address very carefully every day. A common example would be if Chris or Kelly or myself, one of our three attorneys go to a nursing home and they meet with a senior. Let’s say she is 84 years old. She’s had the dreaded bad fall. She fell in the bathroom. She broke her left hip. She’s now in skilled nursing rehab. It’s not clear if she can do rehab. She may be stuck in a nursing home for the rest of her life because she can no longer live at home. She might not have great short-term memory. She may have dementia. But if she’s able to be present in the moment and if she can say, “This is my son, John. I want him to make these decisions for me,” she has capacity to sign both of those documents and we would have to ask her a series of basic questions. “Do you want John to make financial decisions for you?” “Yes.” “Do you want John to make healthcare decisions if and when you cannot communicate for yourself?”

And this is not an exaggeration – several times a year, we will visit someone who’s in a hospital bed or a nursing home. They may be hooked up to – they may have head tubes. They may have all kinds of things going on medically to keep them going. They don’t have to be able to speak. If they can communicate by nodding or blinking that they understand what’s going on and that’s obviously a very subjective, nerve-wracking process sometimes. I actually someone in a nursing home in Tucker three weeks ago. She got a major stroke back in March. She could not speak. She was on oxygen, but her husband was there by my side and he said, “Well look at him and look at me. This is Paul. He’s an elder law attorney. He’s here to see if you want to get a power of attorney so that I can make decisions for you,” and she looked at me and she looked at him and she nodded and she started crying. And we asked her a few questions – “Do you want your husband to be able to make these decisions for you?” And she was crying and she was very emotional, but she was also nodding. Does she physically have to be able to sign? Actually, no. Someone can guide her hand. She can literally sign that document with an X and it can still be legally enforceable.

Schenk: Paul, can you walk us through that scenario? What does that look like or are you videotaping? Are there three witnesses?

Paul: No, we don’t. And the problem with videotaping a will signing ceremony or a power of attorney signing ceremony is you’re arguable providing ammunition down the road for anybody who wants to claim that the senior did not capacity and you’re doing this entire thing fraudulently. So we do not videotape anything. In fact, if any of you had Professor Mary Radford for wills, she made a point to say right in the class, “You may have heard of attorneys who want to – if they think someone is going to want to challenge wills down the road and say the will maker did not have capacity, you might hear someone recommend that you video it.” She said, “I would discourage you because you will always be able to find evidence in older people of pauses or awkward questions or other kind of indications of diminished capacity.” She said don’t do that.

So in our world, I know this sounds fast and loose, but we have to meet with people with dementia and diminished capacity every single month, often every week. It is a very subjective process figuring out if they have capacity, but we employ a very functional test. We do not care about labels. If someone has Parkinson’s dementia and they’re in the last year of their life as my mom was last year or if someone has early onset dementia or they have frontotemporal, labels do not matter. What matters is someone’s ability to answer basic questions and be aware in the moment. They don’t have to recite Shakespeare, but if they cannot demonstrate a basic understanding of what we’re talking about and who will be making decisions for them, then they don’t have capacity and we will not let them sign the documents. A lot of cases, we’ve actually had families who’ve brought us documents and say, “I don’t know if she really understood these, but we’re going to need to have the power so we got her to sign these and that’s that.” I’m like, “Yeah, that’s probably fishy. We should probably go see if these documents were in fact valid.” And if it were a few months ago, we may never know.

Smith: You know, it’s interesting, Paul. I went to a nursing home in Decatur, a good one, to interview a new client who had been in a bad one previously. And she’s in bed and her son’s there and I want to know if she’s got the capacity to sign this HIPAA, so I’m asking her a couple of questions. And I finally get to and I say, “Do you know who the President is?” She goes, “Of course I do, I hate that son bitch. His name is Trump.” I was like, “All right. You clearly know what’s going on here, lady.”

Paul: This is a funny comment, Will. Kelley and I, one of our associate attorneys, and she’s brilliant by the way…

Smith: Kelley Napier.

Paul: Yeah, so I’ll just go ahead and confess I’m probably the dumbest person in my law firm and I’m actually not that stupid, so I’m lucky to have amazing coworkers. We had an argument a few days ago. I had someone walk into my office – well his daughter and I were on either side of him. We both had our elbows under his shoulders making sure he did not fall, because his memory care facility had given him an Ativan pill about an hour and half before he showed up at my office.

Smith: Oh good Lord.

Paul: Yeah. So he was loopy. He was out of it. And during the signing ceremony, I walked into Kelley’s office and I was like, “I don’t know if this guy has capacity. I haven’t seen a borderline case like this in a while.” And ironically as soon as Kelley and Tracy, one of our other employees walked in, he was able to answer basic questions. He totally nailed it and it was like he was a totally different guy 20 minutes ago.

So two big things – there are a lot of reasons – and you guys know this – there are a lot of reasons why somebody can be having a bad day or an off day. It may be the wrong time of day.

Smith: True.

Paul: It may be that they just had an antipsychotic medication that throws them for a loop the next two hours to calm them down but also leave them not as sharp as they actually are. It may be that – there are a thousand reasons why. So it’s usually pretty clear to us when someone is just tired, but if we try to engage someone at 10:30 in the morning, which is a great time for a lot of folks – they’ve had breakfast, they’ve had their morning meds – and they’re still completely not able to answer basic questions, we’re going to look at them and say, “We don’t think that this person has capacity to sign these documents. Here is why. We’re happy to come back and do this over” in some cases, or in some cases we’re like, “There’s no way. He doesn’t have capacity. You were wrong.”

Smith: Yeah.

Paul: I’ve talked to a lot of spouses or to a lot of adult kids and they’re like, “No, I don’t think my husband or my mom has capacity.” And then when you speak to this person by phone, they totally have capacity. They may have short-term memory issues, but if I say, “I’m an elder law attorney. Do you want us to complete documents for your signature where your husband or your son or your daughter can make these decisions?” they’re like, “Oh my gosh, yes. If I can’t do that, I want them to do it.” Does it matter that they still think Jimmy Carter is President? Maybe. It all depends on – it’s all about context. Someone who is attuned to the here and now and the basic questions of what we’re talking about, that’s what I’m looking for and not doing a 25 question mini mental. I’m not having them read a clock or tell me who’s the President. There is a time and a place for that, but we don’t use those basic questions. Our questions are about why we’re there and what they want. And if they can answer those, then that’s that.

Smith: Interesting. Good point. Good point.

Schenk: Well Paul, this half-hour has flown by. Can you tell the listeners how they might be able to get in touch with you if they have questions?

Smith: And we’re going to also put up this contact information.

Schenk: Jean will.

Smith: Yeah, Jean will.

Paul: Yeah. Before we do that, I will note you do not need an attorney to get a healthcare directive in place. You do not need an attorney in many cases to get a durable financial power of attorney in place. There are often very good reasons for having elder law attorneys draft a power of attorney. A lot of power of attorneys out there frankly suck and cause a lot of headaches that we have to fix down the road, but why do people bring us in the picture – because it’s not clear to them how Mom or Dad or someone else will pay for care. It’s not clear what sort of documents need to be in place. So having a professional who works in this world is a godsend in many places, but for ordinary adults like the three of us who have capacity, we don’t have to hire an attorney to get a healthcare directive in place.

And I want to get back to one of the points I made earlier. An ounce of prevention is worth a pound of cure. Have your basic documents in place, your healthcare directives, your power of attorney, and if you have property you want to pas onto certain people, having a will. We do a lot of planning for young folks, old folks, middle class folks, gay folks, straight folks, all across the board, just having wills, healthcare directives, power of attorney. It’s when people don’t have those late in life or they have dementia that things can really blow up.

Smith: Awesome. So how are people going to get a hold of you? What’s the best way?

Paul: They can reach us on the web at Georgia-ElderLaw.com. They can also reach us by phone, and that number is (770) 854-0688. Our office is at Chamblee Tucker and 85, but we serve clients all across Georgia. I have a lot of clients in my native South Georgia around Albany or Albany as Will said. We have clients up in the mountains. We have clients in Athens. So we actually do work with people statewide on these issues, and not everyone who calls us needs to hire us. A lot of people just need brief advice about what to do in their situation. We probably spend about an hour to an hour-and-a-half each on the phone talking to those people every day and making sure they know they have their bearings and know what they should be doing.

Smith: Awesome, Paul. Thank you very much, Paul.

Schenk: It was great having you. Maybe we’ll have you on next week. And on behalf of Paul, I’d like to say thank you to the listeners for sticking to the end. And just a reminder, this is not just an audio podcast. This is a video podcast, so there are two ways to catch us. You can either download the audio via MP3 on Stitcher or iTunes or, perhaps by this point in the year, Spotify, or you can watch the video podcast. You’ll be able to see Paul’s beautiful, bald head in the corner of the screen for the entirety of the broadcast on NursingHomeAbusePodcast.com or our YouTube channel. And again, on behalf of Paul, my name is Rob Schenk.

Smith: And I’m Schenk Firm.

Schenk: Thank you so much and we’ll see you next time.

Smith: See you next time.

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