My broker asked, “What, were you a witness or something?” “You do know that I am a judge, don’t you?” I asked. “Well, yes, but I didn’t know you tried cases.” Such is the experience of many probate judges; far too many people really do not know what probate judges do.
Sure, we issue marriage and weapons carry licenses, administer oaths to public officials, fill vacancies in certain elected positions, approve bonds of elected officials and perform many other more clearly administrative or ministerial duties. These duties have their genesis in the fact probate judges were the original county governing authority. Sure, we are authorized to perform marriages, and many of us do so.
But probate judges in Georgia do so much more than those things; they are judicial officers; they try cases; they render decisions and issue orders.
Probate courts are courts of record under Georgia law. They exercise exclusive, original jurisdiction in almost all matters concerning administration of estates of deceased persons, the appointment and monitoring of guardians and conservators of incapacitated adults, the appointment of permanent and temporary guardians of minors, the appointment and monitoring of conservators of minors, the appointment and monitoring of conservators for missing persons, the determination of the presumption of death of missing persons, the court-ordered sterilization of developmentally disabled females at risk of pregnancy, and court-ordered evaluation and the civil commitment to involuntary treatment of persons believed to be in need of treatment for mental illness and/or addictive disease.
Probate judges may determine the transfer and placement of patients who are incapable of giving informed consent, when there are no persons available and willing to act on the patient’s behalf. Probate judges can determine the funeral arrangements for a deceased person whose family is in irreconcilable disagreement over the issue. Probate judges may be called upon to determine whether life-sustaining treatments should or should not be terminated for a person incapable of making an informed decision.
It is, thankfully, true most will probate and estate administration matters are uncontested.
However, contested estate and guardianship/conservatorship trials can rival any contested divorce or child custody case in superior court. A probate judge’s decision in those cases can significantly impact family members, family factions, charitable entities, foundations, elderly persons and incapacitated adults, as well as, potentially, millions of dollars. There is no amount or value limit on the jurisdiction of the probate courts in these cases. The James Brown case was first decided by a probate judge; who his heirs were was first decided in probate courts.
In adult guardianship/conservatorship cases, complete control of all of the wealth of a person can come under the jurisdiction, supervision and “control” of the probate court.
If it becomes necessary to appoint a guardian or conservator for the very wealthiest citizen of a county, the decision who shall serve and the subsequent supervising and monitoring of the service of the person appointed fall initially within the exclusive jurisdiction of the probate court.
Decisions of probate judges in adult guardianship cases can impact issues arguably infinitely more important than money and property. In appointing a guardian for an adult, the probate judge may remove from a person the right to decide where to live, to decide whether to marry, to consent to or refuse medical treatment, to make a will or create a trust, to revoke an existing will or trust, etc.
In far too many case, the probate judges have had to enter orders establishing visitation rights of others with the incapacitated person. Who is appointed may impact end of life decisions, and, in certain cases, no termination of life-sustaining treatment may be done without approval from the probate judge. The initial decisions in the Karen Ann Quinlan and Terri Schiavo cases were made in probate courts. Few legal disputes involve such divergence of opinion, involve greater emotions, or have greater impact, physically and emotionally, than those involving end-of-life decisions.
Georgia is somewhat unique in that there are two levels of probate courts. In metropolitan counties in which the probate judge is an attorney having the qualifications to serve as a superior court judge, the probate court is considered an “Article 6 Probate Court.”
Cherokee is such a county. These special probate courts are, in essence, raised to the level of a superior court. There is a right to trial by jury, and appeals are taken only to the Court of Appeals and the Supreme Court. In all other probate courts, a case may be appealed to the superior court, where the case is tried again (de novo), with the right to a jury trial.
Whether in connection with a decedent’s estate, the appointment of a guardian or conservator of a minor or incapacitated adult, or the involuntary treatment of family member or friend for mental illness or addiction, probate courts in Georgia are the one court with which almost everyone will have contact at some point during their lives. Probate judges daily impact the lives of the citizens of our counties. Probate judges and their staffs are truly public servants, whose service touches the lives of all county citizens.
Judge William J. Self is a senior judge in the Probate Courts of Georgia, having served as Judge of the Probate Court of Bibb County from 1989 until his retirement in 2012. In 2013, Judge Self joined the Macon law firm of Anderson, Walker & Reichert LLP as “Of Counsel.”