We have all seen the headlines about Bobbi Kristina Brown, the daughter of the illustrious Whitney Houston, and her tragic death. After being found unconscious in the bathtub of her Roswell, Georgia townhome, she was admitted to the hospital and placed in a medically induced coma for months before being transferred to hospice and subsequently passing away. Her death is tragic for many reasons: her young age, the eerie similarities between her death and her mother’s, the allegations of domestic abuse, and the immediate fight among family members to gain control over her care and her assets. With proper estate planning, at least the last tragedy would have been avoided.
The first issue upon Bobbi Kristina’s hospitalization was who would be in charge. Who had the authority to make health care decisions on her behalf, consent to medical procedures, and decide on a healthcare facility? Next, who would pay the bills, maintain her accounts and engage professionals in assisting in the management of her estate? Bobbi Kristina’s case was a perfect storm, her mother was deceased, her boyfriend was alleging to be her husband and was being accused of domestic abuse, her father has a public history with drug issues and the Houston and Brown families have a very public history of disagreements.
When someone loses capacity to make their own medical decisions and handle their own financial affairs, the State of Georgia provides for the appointment of a Guardian or Conservator to do so for them. Often, clients assume incapacity applies only to the elderly, as result of Alzheimer’s or dementia, and so they put off planning for it. The result can be infighting among family members, significant attorney’s fees and a court intervening to appoint a representative.
Georgia law provides priority for guardians and conservators. O.C.G.A. Sections 29-4-3 and 29-5-3 give the order of preference for guardians and conservators, respectively, but also allow the court to disregard the statutory preferences in order to appoint an individual who will act in the best interest of the Ward (the individual for whom guardianship/conservatorship is sought). The first priority in all cases is any person nominated in writing by the Ward. The preference of priority is then: spouse, adult child, parent, guardian appointed during minority, guardian previously appointed in another state, and then friend, relative or other individual. Those with priority may also appoint someone in their stead, with the same priority; for example, the spouse may appoint a friend to act for them.
In Bobbi Kristina’s case, the Brown and Houston family reached an out-of-court settlement appointing Pat Houston, Bobbi Kristina’s aunt, and Bobby Brown, her father, as Co-Guardians. An unrelated third party, an attorney, was appointed as conservator. Although Bobby Brown, under the Georgia statutes, had priority over Pat, the appointment of both was likely to avoid continued litigation.
Fortunately, protracted litigation and attorney’s fees can be avoided. Bobbi Kristina could have selected the person she trusted most to make such decisions, both medical and financial, by execution of an Advanced Directive for Healthcare (“Healthcare Directive”) and a General Power of Attorney. Georgia has standardized a form Healthcare Directive which nominates someone to serve as healthcare Agent as well as a Guardian. In addition, the Healthcare Directive allows the principal to express their wishes with regard to end of life care and life sustaining measures in the event they cannot communicate such wishes.
The General Power of Attorney (“POA”) covers all non-medical decisions. Our firm drafts a very broad POA for clients to use in the event of incapacity. A well drafted POA can completely avoid a Guardianship and Conservatorship proceeding in Georgia since it is your own appointment of a trusted friend or family member to handle your affairs in the event of incapacity. The person nominated for medical decisions and the person nominated for financial decisions need not be the same person.
Better safe than sorry is so true in the context of incapacity. It is far easier and less expensive to prepare these simple forms in advance of a medical emergency than to have no direction or instructions in place for your loved ones.