Miller Trusts are typically used to address people who are “gapped” on receiving nursing home benefits from Medicaid.  In order to qualify for Medicaid, you must have an income of less that approximately $2,000 per month.  However, the average cost of a nursing home is over $4,000 per month.  That creates a “gap” of no coverage for people who earn more than the Medicaid rate but less than the cost of the nursing home.

For example, let’s say that Bill receives $600 a month in social security and $1,800 a month from a pension.  Bill needs to stay in a nursing home, but the cost is $4,500 per month.  Bill makes $2,400 per month, so he does not qualify for Medicaid assistance.  What can he do?

Bill can set up a Miller Trust and assign his income to the trust.  Bill can then qualify for Medicaid assistance for the cost of the nursing home.  Bill’s income is paid into the trust each month and the trust will pay whatever Bill’s portion of the costs are determined to be.  When the trust is terminated, either by Bill or when Bill passes away, Medicaid will have lien rights on any amounts remaining in the trust.

Miller Trusts are not designed to protect assets or accumulate wealth for distribution to heirs.  Medicaid will have a right to any money left over in the trust.  However, Miller Trusts provide a method of obtaining Medicaid assistance and essentially deferring a portion of the costs until the trust terminates.

The cast of characters in this answer:

• Petitioner: the person(s) filing the petition for guardianship or conservatorship.
• Ward: the person who the petition is seeking to obtain a guardianship or conservatorship over.  Also known as the incapacitated person.
• Proposed Ward: the person who will be the ward is called a “proposed ward” in the petition and throughout the court proceedings.
• Guardian: the person who will be responsible for the care and well being of the ward.
• Conservator: the person who will be responsible for managing the finances of the ward.

Typically in Georgia the probate court will charge a filing fee that ranges from $450 to $600 depending upon the county where the petition is filed.  That fee generally includes the cost of a court appointed social worker to review the proposed ward’s diagnosis and a court appointed attorney to represent the ward.

In addition, your attorney will charge you for handling your case.  Some attorneys will charge on a hourly basis, usually $150 to $250 per hour spent on your case.  Other attorneys will charge a flat rate for handling your case, usually from $500 to $1,500.  Bass Green, PC charges a flat rate of $675 for cases in Cobb and Cherokee counties and $775 for cases and other metro Atlanta counties.  For counties outside metro Atlanta the flat fee will be calculated based upon expected travel time to the county.

Note that attorneys’ fees do not include court filing fees.

Once you have a guardianship or conservatorship, you will be required to file reports on the ward.  Usually these reports are due within 60 days of obtaining the guardianship or conservatorship and then annually within 60 days of the anniversary of the date the guardianship or conservatorship was granted.  There are court filing fees associated with the filing of these reports, usually around $50.

Related Questions:

What do I need to obtain a guardianship of an incapacitated person?

The cast of characters in this answer:

• Petitioner: the person(s) filing the petition for guardianship or conservatorship.
• Ward: the person who the petition is seeking to obtain a guardianship or conservatorship over.  Also known as the incapacitated person.
• Proposed Ward: the person who will be the ward is called a “proposed ward” in the petition and throughout the court proceedings.
• Guardian: the person who will be responsible for the care and well being of the ward.
• Conservator: the person who will be responsible for managing the finances of the ward.

In Georgia, the court will require either two people to sign the petition for guardianship or one person and an affidavit from a doctor.  If you are using an affidavit from a doctor, it should follow the form listed on the website for the Georgia Probate Courts. Note that the petition MUST be filed within 10 days of the doctor seeing the patient and signing the affidavit.

If you are seeking a conservatorship as well, you will need to complete a worksheet that lists the income, debts, and assets of the proposed ward.

Once filed, you will need to notify any living parents, siblings, or children of the proposed ward.  If there are not at least two living parents, siblings, or children, then you must list at least two adults who are friends or other relatives of the ward.

Related questions:

How much does it cost to obtain a guardianship of an incapacitated person?

Second let’s clear up what we are discussing.  This question concerns obtaining a guardian for an incapacitated adult or minor only.  It does not address obtaining a guardianship over minors who are wards of the court, revoking parental rights, etc.  What is incapacitated?  Typically it is somebody who is unable to make or communicate significant responsible decisions concerning their health, safety, finances, or general welfare.  In addition, the court will look to see if there are less restrictive alternatives that are available.

In Georgia, guardianships are handled by the probate court of the county where the ward resides, not where the guardian resides.  The person who is seeking the guardianship files a petition with the probate court.  The petition asks the court to decide that the ward is unable to care for himself and asks that the court appoint a guardian.

In order to file the petition, you must have a doctor sign an affidavit that the ward is unable to care for himself.  The petition must be filed within 10 days of the doctor signing the affidavit.  However, if there are two petitioners, no affidavit is required from a doctor.  However, both people must sign the petition.

Once the petition is filed, the court will appoint a social worker to interview the ward and submit a report to the court.  The court will also appoint an attorney to represent the ward.  The attorney will represent the ward’s interest in court.

Any living parents, siblings, or children of the ward will have to be notified of the petition.  Once everybody has been notified and the social worker and court appointed attorney have met with the ward, the court will schedule a hearing.  At the hearing, the petitioner will testify as to why the ward needs a guardian.  The court appointed attorney will announce his report and is allowed to question the petitioner.  Based upon all of the evidence provided at the hearing, as well as the report from the social worker, the court will decide if a guardian should be appointed.

Most probate courts in Georgia charge anywhere from $400 to $500 to file a guardianship petition.  That fee includes the cost of the court appointed attorney and social worker.  It does not, however, include any fees that your attorney will charge for handling your petition.

The court will not interfere with the parents’ right to determine whether or not their child should have visitation or contact with a grandparent. The grandparent’s rights to have access to their grandchildren, when the parents of a child are living together (regardless of marriage), are not rights protected under the law in Georgia.

If the parent of the grandchild is deceased, the grandparents may petition for visitation rights, however there must be a showing that the grandchild was the child of the grandparents’ child.  In any case, the grandparents have the burden of showing that the health or welfare of the child would be harmed unless such visitation is granted and the best interests of the child would be served by such visitation.

§ 19-5-3. Grounds For Total Divorce.

The following grounds shall be sufficient to authorize the granting of a total divorce:

(1) Intermarriage by persons within the prohibited degrees of consanguinity or affinity;

(2) Mental incapacity at the time of the marriage;

(3) Impotency at the time of the marriage;

(4) Force, menace, duress, or fraud in obtaining the marriage;

(5) Pregnancy of the wife by a man other than the husband, at the time of the marriage, unknown to the husband;

(6) Adultery in either of the parties after marriage;

(7) Willful and continued desertion by either of the parties for the term of one year;

(8) The conviction of either party for an offense involving moral turpitude, under which he is sentenced to imprisonment in a penal institution for a term of two years or longer;

(9) Habitual intoxication;

(10) Cruel treatment, which shall consist of the willful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb, or health;

(11) Incurable mental illness. No divorce shall be granted upon this ground unless the mentally ill party has been adjudged mentally ill by a court of competent jurisdiction or has been certified to be mentally ill by two physicians who have personally examined the party; and he has been confined in an institution for the mentally ill or has been under continuous treatment for mental illness for a period of at least two years immediately preceding the commencement of the action; and the superintendent or other chief executive officer of the institution and one competent physician appointed by the court, after a thorough examination, make a certified statement under oath that it is their opinion that the party evidences such a want of reason, memory, and intelligence as to prevent the party from comprehending the nature, duties, and consequences of the marriage relationship and that, in the light of present day medical knowledge, recovery of the party’s mental health cannot be expected at any time during his life. Notice of the action must be served upon the guardian of the person of the mentally ill person and upon the superintendent or other chief executive officer of the institution in which the person is confined. In the event that there is no guardian of the person, then notice of the action shall be served upon a guardian ad litem, who shall be appointed by the court in which the divorce action is filed, and upon the superintendent or chief executive officer of the institution in which the person is confined. The guardian and superintendent shall be entitled to appear and be heard upon the issues. The status of the parties as to the support and maintenance of the mentally ill person shall not be altered in any way by the granting of the divorce;

(12) Habitual drug addiction, which shall consist of addiction to any controlled substance as defined in Article 2 of Chapter 13 of Title 16;

(13) The marriage is irretrievably broken. Under no circumstances shall the court grant a divorce on this ground until not less than 30 days from the date of service on the respondent.