In re Jenkins

• Decision Date: 01 February 2021
• Docket Number: A20A1935
• Parties: IN RE ESTATE OF JENKINS.
• Court: Georgia Court of Appeals

358 Ga.App. 254

855 S.E.2d 6

IN RE ESTATE OF JENKINS.

A20A1935

Court of Appeals of Georgia.

February 1, 2021

Robert W. Hughes Jr., Stone Mountain, Lauren Albanese Bryant, for Appellant.

McFadden, Chief Judge.

This appeal concerns a probate court order that effectively prohibits the conservator of an adult ward's estate from disbursing more than $120,000 of the ward's annual income without court authorization. Such an order is inconsistent with the authority generally given conservators in the Act governing conservators of adult wards, OCGA §§ 29-5-1 et seq. ("the Act"). But the Act authorizes probate courts, in the exercise of their discretion, to enter orders inconsistent with the authority otherwise provided to conservators. The record before us does not establish that the probate court abused her discretion by entering the inconsistent order on appeal in this case. So we affirm. We do not reach the appellant conservator's separate argument regarding the validity of a standard probate court form, because the probate court made no ruling on that issue below.

1. Facts and procedural history.

The ward, Shaun A. Jenkins, Jr., who is now 30 years old, sustained profound injuries as an infant as the result of medical malpractice. His injuries left him with permanent cognitive and physical disabilities. Jenkins received a large financial settlement for his injuries and, as of the time of the order on appeal, he had an annual income exceeding $337,000.

Appellant Gary Sams has served as the conservator of Jenkins's estate since 1995, when Jenkins was a minor. He currently serves in that role pursuant to letters of conservatorship that the probate court issued in 2008 after Jenkins turned 18 years old.

When he was appointed conservator in 2008, Sams gave a conservator's bond as required by OCGA § 29-5-40 (a). He also filed an inventory of Jenkins's property and a plan for managing, expending, and distributing the property as required by OCGA § 29-5-30 (a). In each subsequent year, Sams submitted an annual return, which under the Act consists of

a statement of the receipts and expenditures of the conservatorship during the [preceding] year ..., an updated inventory consisting of a statement of the assets and liabilities of the estate ..., an updated plan for managing, expending, and distributing the ward's property, a note or memorandum of any other fact necessary to show the true condition of the estate, and a statement of the current amount of the bond.

OCGA § 29-5-60 (a). He filed the inventory and asset management plan using Georgia Standard Probate Court Form 58. That form required Sams to provide detailed information about Jenkins's anticipated average monthly income and average monthly expenses for the upcoming year. See generally Uniform Probate Court Rule 5.9 (concerning adoption and use of standard forms in probate courts).

In every asset management plan filed by Sams since his 2008 appointment, Sams, selecting a pre-printed option on the standard probate court form, asked the probate court to permit him "to disburse the ward's income as estimated [in the filing] for the support of the ward and those persons who are entitled to be supported by the [w]ard." Sams chose this opinion instead of another option requesting leave to disburse a specified monthly amount not only from income but also from principal of the ward's estate. Despite Sams's requests, in all but two of those years the probate court did not permit Sams to disburse Jenkins's income. Instead, the probate court entered orders restricting Sams's spending to a specified monthly amount less than Jenkins's income. Those lesser monthly amounts usually matched the estimated monthly expenses that Sams included in his filings.

In 2019, Sams filed an annual return showing that during one month he made disbursements exceeding the court-ordered monthly amount to purchase a disabled-accessible van for Jenkins. That purchase did not cause Sams to disburse more than Jenkins's annual income. But the probate court found that the annual return showed an "encroachment on conservatorship funds without prior court approval" and ordered Sams to appear at a January 17, 2000 hearing on the matter. Ahead of that hearing, Sams submitted a brief in which he argued to the probate court that the Act governing conservators of adult wards authorized him to make reasonable disbursements from Jenkins's annual income without being restricted to a monthly budget.

Testimony was presented at the January 17, 2000 hearing, and the probate court subsequently entered a written order based in part on that testimony. In that order, the probate court stated that she approved the asset management plan submitted by Sams. But other rulings in that order are inconsistent with the asset management plan submitted by Sams. Although Sams sought leave to distribute Jenkins's annual income, the probate court ordered that Sams's monthly disbursements be limited to $17,000, an amount significantly less than Jenkins's estimated monthly income of more than $28,000. The probate court further ordered that Sams deduct his statutory commission and other administrative fees from the $17,000 he was permitted to disburse monthly on Jenkins's behalf. We construe this order to be an approval of the asset management plan as limited by the probate court's more restrictive rulings.

Sams appeals from this latest probate court order. He asserts that the probate court erred "by exceeding [her] statutory authority to limit Sams’[s] discretion to expend all annual income of his [w]ard without prior probate court approval if the expenditures are reasonable and in the [w]ard's best interest" and "by abusing [her] discretion by arbitrarily and capriciously restricting Sams to spending an amount less than the income of his [w]ard in violation of the [Act]." He also asks that we "declare [Georgia Standard Probate Court Form 58] invalid in its current format."

As detailed below, we agree with Sams that the governing Act generally gives a conservator the authority to disburse the full amount of the adult ward's income without court order. We also agree that the probate court's order in this case is inconsistent with that authority. So we are concerned that the probate court's decision to infringe on the conservator's statutory authority to spend the ward's income on the ward's behalf is founded, not on an individualized exercise of discretion, but on a routine practice that the court has adopted. But the Act does give probate courts discretion to enter orders inconsistent with the authority otherwise given to conservators. The order on appeal is such an order. And the appellate record does not include the hearing testimony that the probate court considered in deciding to limit Sams's monthly disbursements to $17,000. So Sams has not shown by the appellate record that the probate court abused her discretion in entering that specific order. Finally, we decline Sams's request to declare the standard probate court form invalid, because the probate court made no ruling on that issue.

2. A conservator's authority under the Act.

Sams argues that the Act gives a conservator the authority to disburse a ward's annual income without prior probate court approval so long as those disbursements are reasonable and in the ward's best interest. We agree with Sams that this generally is the case. But we hold that the Act authorizes probate courts, in the exercise of their sound discretion, to enter orders limiting that authority.

In interpreting the Act's provisions,

we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. We must also seek to effectuate the intent of the Georgia legislature. OCGA § 1-3-1 (a). In this regard, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

In re Estate of Gladstone , 303 Ga. 547, 549, 814 S.E.2d 1 (2018) (citation omitted). 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.

OCGA § 29-5-23 (a) (1) (emphasis supplied). It gives a conservator similar authority to enter into contracts for labor or service, OCGA § 29-5-23 (a) (2), and to borrow money and bind the ward's property. OCGA § 29-5-23 (a) (3). The language in these provisions referring to a court-approved "annual budget amount" does not apply to the facts of this case. That language concerns budgets "for the expenditure of funds in excess of the anticipated income from the [ward's] property[.]" OCGA § 29-5-30 (c) (emphasis supplied). In this case, Sams has not sought to disburse funds in excess of the anticipated income from Jenkins's property, so of course the probate court has not authorized a budget for the expenditure of such funds.

The Council for Probate Court Judges, which submitted an amicus curiae brief in this case,¹ does not appear to disagree with this construction of OCGA § 29-5-23 (a) (1). In discussing Sams's arguments related to that provision, the Council stated that "the probate court does not have the authority to disapprove an [asset management plan] if [the plan] demonstrates that the proposed spending is reasonable and for the benefit of the ward."

But the plain language of OCGA § 29-5-23 also permits a probate court to enter orders inconsistent with the authority otherwise given to a conservator. As recited above, that...