Wednesday, October 11, 2017

Cases raise questions about guardian oversight and lawyer-hospital relationships

From the ABA Journal: "Cases raise questions about guardian oversight and lawyer-hospital relationships."

This is only an overview of the some of the problems with ethics and due process in guardianship law. Ultimately, judges need to take a careful look at all the cases before them.

Tuesday, September 12, 2017

Legal advice from Mother Goose

Rule 2.1 of the Georgia Rules of Professional Conduct provides that "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. A lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client." Comment 2 explains as follows:

Friday, August 25, 2017

Health savings accounts now exempt in Georgia bankruptcy

Health savings accounts and medical savings accounts are now specifically exempt for individuals filing for bankruptcy protection in Georgia bankruptcy cases (i.e., when Georgia bankruptcy exemptions apply). Senate Bill 87 was passed by the General Assembly and signed by Governor Deal this year for a July 1 effective date. There is no dollar limit on the amount of this exemption, though it is tied to accounts which are defined by the Internal Revenue Code or a law called the Georgia Affordable HSA Eligible High Deductible Health Plan Act.

Formerly, the funds in an HSA or MSA could only be exempted potentially up to $10,000 as a "wild card" exemption, which is a "catchall" exemption for any type of property which did not have its own special category of exemption (such as jewelry, motor vehicles, or retirement accounts). Since the use of the medical funds are restricted and used for a debtor's support needs, this is a very good policy development in Georgia which was long overdue.

Monday, December 28, 2015

Due process in appointing a guardian for an adult

Among our most cherished rights, as American citizens, are the freedom of choice as to our movements, to be free to go where and when we wish, and the right to control and use our worldly possessions as we see fit. To place another in control of our person and our possessions deprives us of these basic rights. The law permitting such deprivation should be strictly construed and all requirements of the law strictly complied with.
Justice Carlton Mobley for the Supreme Court of Georgia in the unanimous opinion in Boockholdt v. Brown, 224 Ga. 737, 739, 164 S.E. 2d 836, 838 (1968).

Thursday, April 9, 2015

How to terminate an adult guardianship or conservatorship in Georgia

Guardianships and conservatorships, by and large, are not often terminated because, in most cases, the adult ward is of advanced age or disability and the need for a guardian and conservator will continue until death. However, in cases of mental illness or in cases of catastrophic injuries from which a ward may recover significantly, it may be appropriate to end the guardianship when the need for a guardian abates.

Article: "Protecting the Protected: Overseeing Adult Guardianship"

This article highlights common procedural infirmities that plague the establishment of adult guardianships and conservatorships nationwide, along with brief examples of abuse: “Protecting the Protected: Overseeing Adult Guardianship,” by Judy McKee and Sean M. Douglass. It is a few years old but still very relevant.

Saturday, May 10, 2014

More Chapter 7 lien stripping in Georgia

The Eleventh Circuit Court of Appeals this past week affirmed the lien strip which was allowed in the Malone case (case no. 12-61289 in the Bankruptcy Court for the Northern District of Georgia). This appeal was styled Wilmington Trust, Nat'l Assoc. v. Malone. It relies on the earlier McNeal opinion which is now published at 735 F.3d 1263.

This is a big deal because lien stripping in Chapter 7 is now more firmly established in Alabama, Florida, and Georgia. This procedure allows the lien of a second mortgage to be completely removed from a property when the value of the property is less than the debt owed on the first mortgage. Until recently, it was only available in Chapter 13 cases. It was rarely allowed anywhere in the country in Chapter 7 cases until recently, even though there were strong theoretical arguments that they should be allowed in Chapter 7.

Read more about lien stripping here: "Can I Get Rid of Second Mortgages and Liens in Chapter 7 Bankruptcy?" (Nolo.com.) (Keep in mind that the McNeal decision is now published.)

Tuesday, July 23, 2013

Form letters to send to debt collectors

The Consumer Financial Protection Bureau has published five form letters that consumers may use to correspond with debt collectors. These letters help consumers use their rights under the Fair Debt Collection Practices Act for purposes such as verifying a debt, disputing a debt, or requesting that a collector cease contact with the consumer.

Tuesday, April 16, 2013

Chapter 7 lien stripping in Georgia

Stripping off a second mortgage in Chapter 7 bankruptcy has come to Georgia. Nationwide, it has been generally understood that a wholly unsecured second mortgage can be stripped off in a Chapter 13 case but not in Chapter 7. Law professor types have argued that there is no theoretical reason that the concept should not apply in Chapter 7, and the courts might be coming around.