Whether the result of a debilitating medical condition, an injury suffered in an accident or the disabling effects of the aging process, a person may become unable to manage their personal affairs. Georgia law allows a court to appoint guardians or conservators to manage and care for the affairs of adults incapable of doing so for themselves. Guardianship proceedings appoint someone to make medical decisions. A conservatorship may be necessary when an incapacitated person has financial matters that must be managed. Each requires approval from a court, but other options may be available depending upon the circumstances.
When may courts appoint a guardian for an adult?
A guardian is someone appointed by a probate court in Georgia to make health and safety decisions on behalf of an adult proven to be incapable of making them. Guardians do not have the authority to make decisions regarding financial matters, including banking and business transactions. If an adult is incapable of handling financial affairs, a probate court proceeding must be commenced asking for the appointment of a conservator.
Confusion may arise about the roles of guardians and conservators. This may be because of changes in the law that replaced ?guardian of the property? with ?conservator.?
Guardians become responsible for ensuring that the adult, known as the ?ward,? receives appropriate and necessary support, education, medical care and other services to meet the needs of the individual. Conservators focus primarily on management of the property of the ward to preserve it and prevent losses.
Adult guardianship procedure
Whether applying for adult guardianship or conservatorship, the process starts with the filing of a petition with the probate court in the county in which the ward resides. Courts appoint individuals who they believe will serve the best interest of the ward, do not have a conflict of interest with the ward and do not have an affiliation with a caregiving facility.
State law designates certain categories of individuals as being preferred for appointment as guardians. Included for preferential appointment are the following:
Person designated for appointment by the ward through an advance directive for health care signed before the ward became incapacitated.
Spouse of the incapacitated adult
Adult child of the ward
Parent of the incapacitated adult
Guardian appointed while the ward was a minor
Guardian of the adult previously appointed in this or another state
Friend or relative of the adult
If no one from any of the categories on the preference list is available or willing to serve as the guardian, the law authorizes the court to appoint any person it believes would be suitable to meet the needs of the ward. In the event that no one can be found to serve as guardian, a court may appoint either the county guardian or, if no one has been designated to serve in that capacity within the county, the court may appoint the Georgia Department of Human Services as the guardian.
Options that may avoid guardianship or conservatorship
A consultation with an Atlanta attorney may give you options to avoid the need for an adult guardian or conservator in the event you become incapacitated. Some of those options include:
Advanced Directive For Health Care: The document allows you to designate an agent to make health care decisions in the event you cannot make them on your own. It also permits you to name a guardian for appointment in the event you become incapacitated.
Georgia Statutory Financial Power of Attorney: This power of attorney designates an agent to make financial decisions on your behalf. Unless you specifically indicate in the document that it terminates in the event you become incapacitated, the power of attorney remains in effect and allows your designated agent to handle your finances.
Living trust: Transferring your assets into a trust with a person named as the trustee having the authority to manage them may eliminate the need for a conservatorship in the event you later become incapacitated.
The steps you take in advance of an accident, illness or other situation that may lead to your incapacity may not avoid the need for appointment of an adult guardian or conservator, but they may help to make the process easier for your family and loved ones.
Get advice from an Atlanta family law attorney
Striking a balance between providing care for adults no longer capable of caring for themselves and the need to protect and preserve their legal rights makes adult guardianship a complex process. A successful outcome depends upon getting sound legal advice and guidance from an Atlanta family law attorney.