In Re Estate of Gary Allen Jenkins

• Court: Court of Appeals of Georgia
• Decided: February 2, 2023
• Docket: A22A1713
• Status: Published

Opinion

SECOND DIVISION RICKMAN, C. J., MILLER, P. J., PIPKIN, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

February 2, 2023

In the Court of Appeals of Georgia A22A1713. IN RE ESTATE OF JENKINS.

MILLER, Presiding Judge.

This case involves a family dispute over the appointment of a conservatorship

for Gary Allen Jenkins, a retiree who currently lives in an assisted living facility due

to his severe memory and mental health problems. Kimberly Sue Jenkins, the wife of

Mr. Jenkins, appeals from the trial court’s order appointing Mr. Jenkins’ son Wesley

Jenkins as his legal guardian. On appeal, Mrs. Jenkins argues that (1) the trial court

erred when it found that there was good cause to disregard Mrs. Jenkins’ statutory

priority to be appointed guardian over Mr. Jenkins under OCGA § 29-4-3; and (2) the

trial court erred by failing to state the basis for its selection of Wesley as guardian,

in violation of OCGA § 29-4-13. A review of the record shows that the trial court did

not abuse its discretion by refusing to appoint Mrs. Jenkins as Mr. Jenkins’ guardian and that it adequately explained and supported its decision to do so. Nevertheless, we

must vacate the trial court’s order and remand for further proceedings because it did

not identify any basis or support for its appointment of Wesley as Mr. Jenkins’

guardian.

This Court reviews a trial court’s order appointing a guardian over a

conservatorship under an abuse of discretion standard. In re Estate of Taylor, 270 Ga.

App. 807 (608 SE2d 299) (2004). We will not set aside a probate court’s findings

“unless they are clearly erroneous and when such findings are supported by any

evidence, they will be upheld on appeal.” (Citation omitted.) In the Interest of M. P.,

338 Ga. App. 696, 697 (791 SE2d 592) (2016). “The probate court’s application of

the law, however, is subject to de novo review.” (Citation omitted.) Id. at 697-698.

The record shows that Mr. Jenkins has three adult sons, including Wesley, from

a relationship prior to his marriage to Mrs. Jenkins. Mr. Jenkins has a long history of

alcohol consumption, and a psychiatric evaluation noted that he regularly spent up to

$2,500 per month on alcohol. Mr. Jenkins and Mrs. Jenkins married in 2008, and

according to Wesley, that is when Mr. Jenkins “transitioned from drinking beer to

brown liquor.” Wesley testified that alcohol was a “constant . . . presen[ce]” in the

house, that “[t]here was never a moment that [he] walked into [their] house and there

2 wasn’t alcohol,” and that Mrs. Jenkins would often restock the house’s bar before she

left on vacation or visited others. Wesley further testified that Mrs. Jenkins was “no

less of a[n] alcohol lover than [his] dad,” and that the couple regularly engaged in a

toxic cycle of drinking and arguing.

According to Mrs. Jenkins, Mr. Jenkins’ drinking problem “started getting

heavy” after he retired and was diagnosed with lip cancer. After one incident in

March 2021, Mrs. Jenkins and one of Mr. Jenkins’ sons took him to the emergency

room, where the doctors discovered that Mr. Jenkins’ liver was shutting down. The

doctors admitted Mr. Jenkins to the hospital for ten days to detox. After Mr. Jenkins

completed his ten-day detox, Mrs. Jenkins attempted to arrange additional rehab

treatment, but Mr. Jenkins refused to attend.

A few months after that incident, Mr. Jenkins was arrested at a restaurant for

impersonating a police officer. A Douglas County court ordered Mr. Jenkins to

undergo further rehab and to either spend a year in a treatment facility or a year in

jail. Because Mr. Jenkins’ mental capacity did not qualify him for a rehab facility,

Mrs. Jenkins arranged for him to be housed in a memory care facility. Mr. Jenkins

was eventually diagnosed with dementia and alcohol-induced brain damage, also

known as Wernicke-Korsakoff Syndrome. His mental capacity is not expected to

3 improve, and his medical providers have advised that he will need to stay in a similar

facility for the remainder of his life.

In December 2021, Mrs. Jenkins filed the instant petition to appoint herself

guardian and/or conservator over Mr. Jenkins. Mrs. Jenkins submitted to the trial

court an Advance Directive form that Mr. Jenkins signed in 2016 wherein he selected

Mrs. Jenkins as his Health Care Agent, the person he authorized to make health care

decisions on his behalf. The form also indicated that Mr. Jenkins selected his son

Clint Jenkins as his back-up Health Care Agent. The trial court appointed a social

worker to evaluate Mr. Jenkins, and the social worker concluded that Mr. Jenkins

lacked sufficient capacity to make significant responsible decisions for himself and

will require extensive care and assistance for the remainder of his life. Wesley filed

a caveat to the petition, arguing that Mrs. Jenkins should not be appointed the

guardian because she enabled Mr. Jenkins’ drinking habits that caused his medical

situation.

Following a hearing that spanned two days, the trial court entered a final order

establishing a conservatorship for Mr. Jenkins and appointing Mrs. Jenkins as the

conservator and Wesley as Mr. Jenkins’ guardian, concluding that doing so was “in

the Proposed Ward’s best interest.” In its order, the trial court concluded that good

4 cause was shown to refuse to appoint Mrs. Jenkins as guardian because there was

evidence that she “lacks the ability to make or communicate significant responsible

decisions concerning the Proposed Ward’s health or safety.” Mrs. Jenkins then filed

the instant appeal.

1. Mrs. Jenkins first argues that the trial court abused its discretion when it

found good cause to disregard her statutory priority to be appointed guardian over

Mr. Jenkins. We conclude that the trial court properly exercised its discretion.

Georgia law provides that

[t]he court shall appoint as guardian that individual who will best serve the interest of the adult, considering the order of preferences set forth in this Code section. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.

OCGA § 29-4-3 (a). Paragraph (1) of subsection (b) provides that the person with the

highest preference is the “individual last nominated by the [ward]” in writing.

Paragraphs (2) and (3) provide that the spouse shall have next priority, then an adult

child of the ward. OCGA §§ 29-4-3 (b) (2)-(3).

5 Here, we conclude that the trial court did not abuse its discretion by finding

good cause to disregard both Mr. Jenkins’ nomination of Mrs. Jenkins as his desired

guardian and her statutory priority as his spouse. The record indicates that Mr.

Jenkins suffers from dementia and encephalopathy that were caused by his long

history of alcoholism. The trial court found there was good cause to refuse to consider

Mrs. Jenkins as Mr. Jenkins’ guardian because there was evidence that she was

incapable of handling Mr. Jenkins’ health and that she would continue to aid or

enable Mr. Jenkins’ alcoholism. This finding is supported by the record, as there is

evidence that Mrs. Jenkins helped to enable Mr. Jenkins’ alcohol habits and that, after

Mr. Jenkins’ behavior became extreme, Mrs. Jenkins was unable to handle and care

for him on her own without Mr. Jenkins’ sons’ assistance. Although the record

contains numerous conflicting points of testimony regarding Mrs. Jenkins’

capabilities, the trial court was entitled to credit the testimony casting doubt on Mrs.

Jenkins’ ability to properly care for Mr. Jenkins. See In re Cash, 298 Ga. App. 110,

112 (679 SE2d 124) (2009) (“As an appellate court, we are not at liberty to evaluate

either the weight afforded the evidence below or the trial court’s credibility

determinations.”) (citation omitted). Because there is evidence in the record to

support the trial court’s finding that appointing Mrs. Jenkins as guardian would not

6 be in Mr. Jenkins’ best interest, the trial court did not abuse its discretion by passing

over Mrs. Jenkins when it appointed a legal guardian for Mr. Jenkins. See In re

Holloway, 251 Ga. App. 892, 894 (555 SE2d 228) (2001) (under the prior, materially

identical version of OCGA § 29-4-3, evidence supported the trial court’s

determination that good cause was shown to refuse to appoint the ward’s children as

guardians when their actions called into question whether they could act in the ward’s

best interests); see also In re Estate of Kaufmann, 327 Ga. App. 900, 902-903 (761

SE2d 418) (2014) (good cause shown under OCGA § 29-4-3 (b) to disregard the

ward’s preferred guardians when the trial court concluded that two of the proposed

guardians would probably abandon their role and that appointing the other proposed

guardian would have deteriorated the family’s relationships to the detriment of the

ward).

2. Mrs. Jenkins further argues that the trial court erred by appointing Wesley

as the guardian without stating the basis for the selection, in violation of OCGA § 29-

4-13 (a) (1), and by overruling her priority statutory preferences without stating the

factual basis for doing so. Specifically, Mrs. Jenkins appears to argue that the trial

court failed to support its decision with a finding that appointing Wesley was in the

best interest of Mr. Jenkins and that the trial court’s fact findings regarding her

7 unsuitability were not found in the evidentiary record but were found only in

Wesley’s caveat. While we conclude that the trial court adequately explained its

decision to refuse to appoint Mrs. Jenkins and supported that decision with facts in

the record, we agree with Mrs. Jenkins that the trial court did not provide factual

findings to support its appointment of Wesley as Mr. Jenkins’ guardian.

Georgia law provides that, when appointing a conservator or legal

guardianship, “[t]he court shall issue an order that sets forth the findings of fact and

conclusions of law that support the grant or denial of the petition. An order granting

guardianship shall specify [t]he name of the guardian and the basis for the

selection[.]” OCGA § 29-4-13 (a) (1).

In its order, the trial court clearly stated that it found good cause to refuse to

appoint Mrs. Jenkins as the guardian for Mr. Jenkins because it concluded that she

“lack[ed] the ability to make or communicate significant responsible decisions

concerning the Proposed Ward’s health or safety.” The trial court supported its

conclusion with multiple facts from the record showing that Mrs. Jenkins may have

lacked the capacity to handle and help treat Mr. Jenkins’ alcoholism, namely that (1)

Mrs. Jenkins testified that Mr. Jenkins spent $2500 in alcohol monthly; (2) Mrs.

Jenkins testified that Mr. Jenkins earned that money and should be able to spend it

8 as he wishes; (3) when questioned whether she would restrict Mr. Jenkins’ use of

money for alcohol purchases as conservator, Mrs. Jenkins stated that she would

“continue to pay the bills like she has been doing;” and (4) Mrs. Jenkins testified that

she sought assistance from Mr. Jenkins’ sons regarding his care and safety. These

facts could all be read to support a conclusion that Mrs. Jenkins had an intention to

continue to fund Mr. Jenkins’ purchases of alcohol and/or that she did not have the

capacity to handle Mr. Jenkins’ care herself. Thus, the trial court clearly set out the

basis for its decision to refuse to appoint her as Mr. Jenkins’ guardian and adequately

supported its decision with facts in the record.

Nevertheless, while the trial court sufficiently explained its decision to refuse

to appoint Mrs. Jenkins, we agree with Mrs. Jenkins that the order does not contain

any findings or conclusions as to Wesley’s suitability to act as Mr. Jenkins’ guardian.

While the trial court stated its conclusion that he is the person who would best serve

the interest of Mr. Jenkins under OCGA § 29-4-3 (a), that statement by itself is

insufficient to set out the basis for Wesley’s appointment, and the order does not

contain any supporting factual findings or any explanation for that conclusion. Cf.

Fladger v. Fladger, 296 Ga. 145, 148 (2) (765 SE2d 354) (2014) (trial court’s mere

assertion in a divorce decree that the “best interest of the children will be served” by

9 a child support deviation was insufficient because it failed to explain how the best

interest of the child would be served by such a deviation); Ray v. Hann, 323 Ga. App.

45, 50 (2) (746 SE2d 600) (2013) (trial court’s mere assertion that adoption was in

the child’s best interest “lack[ed] particularity,” and vacatur was warranted for further

specific findings of fact to support that conclusion). Therefore, as the trial court failed

to set forth findings of fact to establish the basis of its selection of Wesley as Mr.

Jenkins’ guardian, see OCGA § 29-4-13 (a) (1), we must vacate the trial court’s order

to the extent it appointed Wesley as Mr. Jenkins’ guardian and remand this case with

direction that the trial court prepare appropriate findings of fact to support its

decision. We affirm the remainder of the trial court’s order.

Judgment affirmed in part, vacated in part, and case remanded. Rickman, C.

J., and Pipkin, J., concur.