A Guardianship becomes necessary when an individual lacks the capacity to make a rational decision regarding his or her health care. The need for a Guardianship may occur even when an individual has executed a Georgia Advance Directive for Health Care. The reason behind this is because an advance directive can always be revoked and does not give the health care agent the authority to have control and authority over the ward. Remember, there is no prohibition on making bad decisions. The courts favor the autonomy of the individual. So the standard is not whether an individual is making a bad decision, it is whether they understand the consequences of those decisions.
As an individual begins to make more and more bad decisions such as; not eating properly, not taking prescription medications, leaving the burners on the stove on, hoarding, not keeping the house sanitary—while resisting offers of assistance, someone may have to step up to the plate to take control. That control is taken through the Guardianship process. The Guardianship process in Georgia takes place in the probate court in the county in which the proposed Ward resides or the county where the proposed ward is found. The Petition must be signed by the person seeking to be the guardian (usually a family member) and another person, either someone who is familiar with the situation or a medical professional.
After the petition has been filed in the appropriate probate court, the judge will appoint an attorney for the proposed ward (if that individual in not already represented) and a medical professional (either a physician, a psychologist, or a licensed clinical social worker) to help the court make the capacity determination. After meeting with the proposed ward, the medical professional submits a report of findings and a recommendation as to whether or not a guardianship seems to be necessary. Finally, a court hearing will take place and the Probate Judge will make the determination as to whether to award the guardianship or not. This is essentially the ultimate weighing of individual autonomy against the safety of the individual. This is extremely stressful on all parties to this action and should only be sought if and when no alternative is available and the proposed ward’s health and safety need protection. If any alternative is available, that alternative is preferable.
How do we determine when to file for a guardianship? Short of someone being in a comatose state with no family members, that can be a difficult question to answer. In practice, we see the greatest need for guardianships in individuals who are dealing with a loss of functional capacity due to a dementing disease or stroke. Often in this situation the proposed ward is making terrible decisions and those decisions are placing the proposed ward into a serious danger of harm to him or herself. Always remember that the courts do not like to take rights away from people, so unless it is absolutely necessary, a guardianship will not be awarded.
Guardianship/Conservatorship
A – Z
Bond – The obligation of another to guarantee the proper performance of a duty and to pay any loss caused by the failures to so perform; in guardianship law, a guarantor, called a “surety”, agrees to pay any loss suffered if a guardian or conservator fails to properly perform the duties of the office (mismanagement, loss through negligence, misappropriation, theft, etc.).
Conservator – a person who has been given control and authority over the funds and property of the ward; the conservator is a fiduciary who owes fidelity and loyalty to the ward and who must always act in the best interest of the ward.
Estate – The name given to all the collective assets of a ward; also may be used to refer to the entire case involving a particular ward (e.g., Estate of John Doe).
Fiduciary – A person having the duty to act primarily for another’s benefit in matters assigned or undertaken by the person; a person holding the character of a trustee.
Guardian – A person who has been given control and authority over the person of the ward; the guardian holds a position similar to that of a parent over a minor child; the guardian is a fiduciary who owes fidelity and loyalty to the ward and who must act always in the best interest of the ward.
Guardian-ads-litem – A person appointed by the court to investigate and represent the best interest of the ward with regard to a particular matter pending before the court.
Incapacitated Adult – An adult who has been found by the court to lack sufficient capacity to make or communicate significant responsible decisions concerning his or her person or concerning the management of his or her property.
Letters of Conservatorship – The formal document issued by the court to evidence the appointment of a conservator for a ward and the authority of the conservator then to act; a conservator appointed by the court’s order has no authority to act until the Letters have been issued.
Letters of Guardianship – The formal document issued by the court to evidence the appointment of a guardian for a wards and the authority of the guardian then to act; a guardian appointed by the court’s order has no authority to act until the Letters have been issued.
Personal Status Report – The periodic report of a guardian on the condition, circumstances and needs of a ward.
Petition – A formal, written application to a court requesting judicial action on a certain matter.
Proposed ward – An adult, for whom a petition for the appointment of a guardian or conservator has been filed.
Returns – The periodic reports or accountings of a conservator, consisting of a statement of all receipts and expenditures together with an updated Inventory and Asset Management Plan.
Ward – An adult for whom a guardian or a conservator has been appointed.
