Your Guide to Guardianships And Conservatorships in Georgia

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1 2002 Summit Boulevard NE, Suite 300Atlanta, Georgia Phone: Fax: Web: Your Guide to Guardianships And Conservatorships in Georgia Becoming a guardian and/or conservator enables a person to be there in a decision-making capacity for individuals who are incapacitated either through illness or injury, or who have not yet reached legal adult age (18). Petitioning to become a conservator or guardian is a complex process, and no one should go through it alone. This guide can help you get started. What is a Guardianship? A guardian is granted custody and control over an incapacitated individual by the court. Guardians are responsible for making sure the ward has adequate medical attention, an acceptable place to live, adequate food, etc. Any interested person may file a petition for the appointment of himself or some other qualified person as guardian of an incapacitated person, and if so appointed by the judge, may serve in that capacity. An interested person is an individual who has an interest in the welfare of an incapacitated person, and is not himself a minor, ward, or protected person. What is a Conservatorship? A conservator is granted control over financial matters for an incapacitated individual, such as paying their bills, filing taxes, determining a budget for the ward, taking care of the ward's investments, etc. A conservator has no authority to make decisions regarding the ward s personal affairs. To schedule a free consultation to discuss any potential guardianship or needs in your family or in a legal case you are handling, contact Paul at , or by at

2 Creation of Guardianships for Minors A minor is anyone who is under 18 years of age and who is not emancipated. 1 Georgia law identifies five categories of guardians for a minor: Natural By Georgia law, each parent is considered to be the natural guardian of their minor child. 2 If the parents are divorced and one parent has sole custody of the minor, that parent is also the sole natural guardian. Testamentary Every parent may nominate a testamentary guardian or conservator for his/her minor child in his/her Will. Upon probate of the Will, letters of will be issued to the individual nominated without notice or hearing by the probate court unless the minor has another living parent (natural guardian) or the individual nominated is unwilling the serve. 3 Standby When a health care professional has determined that a parent or guardian is unable to care for a minor because of a physical, mental, or health condition, a standby guardian may be designated. The appointment of a standby guardian, however, does not relieve a parent of his/duty to provide support for the minor. 4 A standby guardianship is generally effective for 120 days unless it is revoked by the designating individual. 5 Temporary Any individual having physical custody of a minor may file a petition to be appointed temporary guardian of the minor. The granting of temporary guardianship of a minor does not permanently terminate the parental rights of the parents. Temporary guardians hold all of the powers of a natural guardian, except temporary guardians may not receive personal property of the minor without first becoming the legally qualified conservator of the minor. 6 A temporary guardianship terminates on the date one of the following occurs: (1) The minor reaches the age of 18, (2) The minor is adopted, (3) The minor is emancipated, (4) The minor dies, (5) The temporary guardian dies, (6) Letters of guardianship are issued to a permanent or testamentary guardian, or (7) A court order terminating the temporary guardianship is entered. 7 1 O.C.G.A (11). 2 O.C.G.A O.C.G.A (b). 4 O.C.G.A O.C.G.A O.C.G.A (f). 7 O.C.G.A (a). 2

3 Permanent A permanent guardian may be appointed for a minor who has no living parents or, after notice to the parents without objection, when the parents fail to properly care for the minor. 8 Permanent guardianship of a minor, though similar, is not the same as legal custody of a minor, which may be granted only by superior or juvenile courts in Georgia. Creation of Conservatorships for Minors A conservator may be required if a minor inherits money or personal property not in a trust or under the management of a testamentary conservator, when a minor has received an award of damages in a personal injury lawsuit, or when a minor is the named beneficiary of life insurance or retirement benefits. 9 Any person may file a petition for the appointment of a conservator of a minor in the probate court of the county in which the minor is found or in which the proposed conservator is domiciled. 10 Creation of Guardianships and Conservatorships for Adults An adult is any individual who is either 18 years of age or older or an emancipated minor. 11 A guardian may be appointed by the probate court for an adult when there is clear and convincing evidence that the adult lacks sufficient capacity to make or communicate significant responsible decisions regarding his/her health or safety. 12 Likewise, a conservator may be appointed when there is clear and convincing evidence that the adult lacks sufficient capacity to make such decisions regarding his/her property. 13 The issue of when a guardian or conservator is needed depends not on whether the proposed ward has mismanaged his/her affairs, but whether he/she lacks the capacity to manage his/her affairs properly. Before a guardian or conservator can be appointed, the proposed ward must be determined by the court to be incapacitated, and no one may be appointed as the guardian or conservator of an adult unless such appointment is found to be in the best interest of the adult. 14 Who may serve? Any individual or entity may serve as the guardian or conservator of an incapacitated adult, unless the individual is himself a minor, ward, or protected person, 8 O.C.G.A O.C.G.A O.C.G.A (1). 12 O.C.G.A (a). 13 O.C.G.A O.C.G.A ;

4 or he has any type of conflict of interest with the proposed ward. 15 Any interested person may file a petition in the probate court of the county where the proposed ward is domiciled or found. 16 Nomination of A Guardian/Conservator An adult may nominate an individual to serve as his/her guardian or conservator in the event that a court subsequently finds the adult to be incapacitated. A spouse, adult child, or parent may also nominate an individual to serve as the guardian or conservator of the adult. 17 Appointment of Emergency Guardians An emergency guardian may be appointed for an adult when there is an immediate and substantial risk of death or serious physical injury, illness, or disease. 18 Appointment of Emergency Conservators An emergency conservator may be appointed for an adult when there is an immediate and substantial risk of irreparable waste or dissipation of the proposed ward s property. 19 Appointment of Temporary Medical Consent Guardians Appointment only for a limited time and only for the purposes of consenting to medical treatment not prohibited by law. 20 Such individuals may be designated in an advance directive for health care or durable power of attorney for healthcare, or otherwise by relation in the following order of priority: One spouse for the other; Any adult child for his/her parent; Any parent for his/her adult child; Any adult for his/her brother or sister; Any grandparent for his/her grandchild; Any adult grandchild for his/her grandparent; or Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree. 21 Powers of Guardians Guardians are generally empowered to arrange and expend money for the support, care, education, health and welfare of a minor or ward. In effect, a guardian has similar powers as that of a parent over a child. 22 Guardians are also vested with the power to: Take custody of the minor or ward and establish his or her place of dwelling within the state; 15 O.C.G.A ; O.C.G.A (a), 14; (a), O.C.G.A ; O.C.G.A , O.C.G.A , O.C.G.A (a)(6). 21 O.C.G.A (a); (a). 22 O.C.G.A (a); (a). 4

5 Give consent to or approval of medical or other professional care, counsel, treatment, or services for the minor or ward; Bring, defend, or participate in any legal, equitable, or administrative proceedings on minor or ward; and In the case of a minor, the guardian may execute a surrender of rights to enable an adoption of the minor. 23 Additionally, the probate court may empower the guardian to: Establish the minor s or ward s place of dwelling outside this state; Change the jurisdiction of the guardianship to another county within this state that is the county of the minor s or ward s dwelling; Change the domicile of the minor or ward to the guardian s place of dwelling; Consent to the marriage of the minor; Bring and action for the divorce of the ward; Consent to the adoption of the ward; Receive reasonable compensation from the estate of the minor or ward for services rendered; and If there is no conservator, to disclaim or renounce any property or interest in property of the minor or ward. 24 Power of Conservators Conservators are generally empowered to receive, collect, and make decisions regarding a minor s or ward s property. Such power includes the authority to: Make reasonable disbursements of annual income; Enter into and fulfill certain contracts; Compromise certain doubtful claims and debts; Engage in and defend litigation; Make certain investments on minor or ward; and Appoint an attorney in fact in such matters above. 25 The probate court may additionally grant the conservator continuing powers with regard to investments, the sale, rental, lease or disposal of property, or the operation of a farm or business in which the minor or ward has an interest. 26 Duties of Guardians and Conservators Every guardian and conservator is obligated to act, at all times, as a fiduciary in the minor s or ward s best interest, exercising reasonable care, diligence, and prudence in the performance of his/her duties as if he/she were attending to his/her own affairs. 27 Every guardian and conservator has a duty to: 23 O.C.G.A (b); (b). 24 O.C.G.A (a); (a). 25 O.C.G.A (b); (b). 26 O.C.G.A (a); (a). 27 O.C.G.A ;

6 Protect, maintain, and, educate the minor or ward; Maintain undivided loyalty to the minor or ward; Act above all suspicion to ensure that the minor or ward receives his/her unbiased and uninfluenced judgment; Never place himself/herself in a position where his/her individual interests conflict or may conflict with the interest of the minor or ward; Notify the probate court of any conflict of interest that might arise; Never use the minor s or ward s funds for personal profit or otherwise convert the minor s or ward s property for personal use, either directly or indirectly; and Avoid situations in which he/she is a successor or remainderman of a substantial portion of the minor s or ward s estate. Rights of Minors and Wards Every minor and ward has the general right to have a guardian or conservator who will act in his/her best interest. 28 A guardian or conservator is accordingly required to respect the dignity of the minor and ward. 29 Rights of Minors The minor has the right to have his/her property utilized as necessary for his/her support, care, education, health, and welfare and to initiate and prosecute any action relating to the guardianship or. 30 Rights of Wards The ward has a right to bring an action on his/her own behalf in the event that he/she is unjustly denied a right or privilege. 32 However, upon the creation of a guardianship or of an adult, the ward may lose some legal rights, including the right to marry, enter into contracts, consent to medical treatment, establish a residence, change his/her domicile, revoke a revocable trust, or make certain business decisions. 31 The ward has the right to have his/her property utilized to provide adequately for his/her support, care, education, health, and welfare and the right to communicate freely and privately with persons other than the guardian or conservator. Accordingly, a ward is entitled to the least restrictive form of guardianship or assistance. 32 For an even more in-depth explanation of guardianships and s in Georgia, see Jennifer Roberts, Georgia Guardian and Ward: An Overview of Guardianships and Conservatorships of Minors and Wards in Georgia, West O.C.G.A ; O.C.G.A (a); (a). 30 O.C.G.A ; O.C.G.A ; O.C.G.A (a); (a). 6

7 Permanent Adult Guardianships Temporary (Medical Consent) Adult Guardianships Adult Conservatorships Guardianships for Minors Conservatorships for Minors Notice Requirements After reviewing the petition, if the court finds probable cause to believe a guardian is needed, notice will be sent to the ward and indivi-duals identified in the proceedings. No notice of the filing of a petition is required. After reviewing the petition, if the court finds probable cause to believe a conservator is needed, notice will be sent to the ward and individuals identified in the proceedings. For standby guardianships, notice must be filed with the court. For temporary, notice must be served on any non-consenting parent. For permanent, notice must be sent to the ward s known relatives. Notice of the petition must be provided to, in order of existence, any parent, siblings, grandparents, or adult relatives of the proposed ward. Duration Terminates upon death of the ward, or upon the granting of a petition for termination. Terminates either upon court order, the appointment of a permanent guardian, the end of hospitalization, or 60 days from the date of appointment. Terminates upon death of the ward, or upon the granting of a petition for termination. Terminates either when the minor reaches 18 years of age, is otherwise emancipated, dies, or the guardianship expires or is replaced by a new guardian. Terminates when the minor reaches 18 years of age or is otherwise emancipated or dies. 7 Key Powers Establish the ward s place of dwelling, and make medical and decisions on ward. May make health care decisions on ward, in accordance with the decisions the ward would have made had he/she not been incapacitated. Make disbursements of annual income, engage in litigation, and enter into contracts or make investments on ward. Take custody of the minor, establish the minor s place of dwelling, and make medical and decisions on minor. Make disbursements of annual income, engage in litigation, and enter into contracts or make investments on minor. Grounds & Procedure for Challenging objection within either 10, 14, or 30 days, objection within either 10, 14, or 30 days, objection within either 10, 14, or 30 days, objection within either 10, 14, or 30 days, objection within 10, 14, or 30 days,

8 NOTES: 8

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