Probate court erred in dismissing petition to terminate guardianship and conservatorship without a hearing

In Re: Loftus, A14A2038

Georgia Court of Appeals, Civil Case (3/19/2015, 4/20/2015)

The probate court erred in dismissing the petition to terminate guardianship and conservatorship and restore the ward’s rights without holding a hearing.

The Court of Appeals reversed the dismissal of Thomas J. Loftus’ petition to terminate guardianship and conservatorship over his sister, Catherine M. Loftus a/k/a Catherine M. Serewicz, holding that the probate court erred in dismissing the petition without holding a hearing. Catherine was the ward of two of her adult children. Loftus petitioned the probate court to terminate guardianship and conservatorship and restore Catherine’s rights. The probate court dismissed the petition for lack of probable cause without first conducting a hearing. However, the record reflected that there was probable cause such that the probate court should have conducted a hearing. The record contained Catherine’s brother’s notarized statement expressing his belief that she was able to “make sound decisions regarding her own welfare,” and the affidavit of a licensed psychologist stating that he had examined Catherine 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. The record also contained a licensed social worker’s report indicating her belief that Catherine was not capable of making responsible decisions on her own and that she was easily influenced by others in her decision making. Given the different evaluations, a hearing was necessary to assess the professionals’ credibility and examine the limitations of their evaluations so that the probate court could determine which of the evaluations to believe. Accordingly, the Court remanded the case for further proceedings consistent with the opinion.

As published by The Daily Report, 190 Pryor St. Atlanta, GA 30303 on 4/20/15, with edits.