If you have a loved one who has special needs and can not care for himself because he lacks the capacity to do so, a guardianship may be necessary. If your loved one owns property or is entitled to receive funds through inheritance or a lawsuit settlement it may also be necessary for a conservatorship to be established. The process of being appointed a guardian or conservator can be a lengthy one, but it can be made easier with the assistance of a knowledgeable attorney. This article gives insight into the process of seeking a guardianship or conservatorship and answers frequently asked questions.
What Is Guardianship in Georgia?
Guardianship is a legal process that results in the appointment of a guardian to make decisions for a person who lacks capacity to make or communicate significant responsible decisions concerning his health or safety. The appointment of a guardian removes from an individual his ability to make decisions regarding where he will live and the medical care he will receive, as well as the right to marry, divorce, or enter into contracts.
After being appointed, the guardian becomes responsible for making personal and medical decisions on behalf of the ward, and must file annual reports with the court.
What Is Conservatorship in Georgia?
Conservatorship is a legal process that results in the appointment of a conservator to make decisions for a person who lacks capacity to make or communicate significant responsible decisions concerning the management of his property (whether real property or monetary assets).
The conservator must be bonded and must file an inventory, a budget, and annual financial reports with the court. Thereafter the conservator must always seek permission from the court to spend any principal of the ward’s estate, to sell stock, to make gifts, to enter into a contract on behalf of the ward, to continue the ward’s business, or to sell or lease the ward’s property.
What Is the Difference Between Guardianship and Conservatorship?
The primary difference between guardianship and conservatorship in Georgia is the type of decisions each appointed individual is authorized to make. A guardian generally handles decisions involving a person’s health, safety, and personal well-being, while a conservator manages financial affairs and property.
| Guardianship | Conservatorship |
|---|---|
| Focuses on personal care and well-being | Focuses on finances and property |
| Makes decisions about healthcare, living arrangements, and personal needs | Manages bank accounts, investments, real estate, and other assets |
| Must act in the best interests of the person under guardianship | Must manage and protect the person’s financial interests |
| Must submit personal status reports to the court | Must submit financial inventories, management plans, and annual returns |
| May involve limitations on personal decision-making rights | May involve limitations on financial and property-related rights |
In some circumstances, a person may need both a guardian and a conservator. For example, an adult who cannot independently make important healthcare decisions or manage a substantial inheritance may require assistance with both personal and financial matters.
Georgia Probate Courts may appoint the same individual to serve as both guardian and conservator, or appoint different individuals to fulfill these responsibilities. The appropriate arrangement depends on the person’s needs and the court’s determination.
How to File for Guardianship or Conservatorship in Georgia
Prepare and File the Petition
To initiate the appointment of a guardian or conservator, a Petition is filed in the Probate Court in the county where your loved one lives or is currently located. Our office will contact you to gather the necessary information to complete the Petition, which may include details about the individual’s condition and daily life. If a conservatorship is also being sought we will need a complete listing of all the individual’s assets as well as their approximate value. We will ask you to provide the names and contact information for a second petitioner (someone who also believes a guardianship and/or conservatorship is necessary) or a physician, psychologist, or licensed clinical social worker who has examined your loved one within fifteen days prior to filing the Petition, as well contact information for at least two adult family members or friends who are in agreement with the Petition.
When the Petition is complete and all parties have signed where necessary, we will file it with the appropriate Probate Court. Some courts may require additional information to be submitted, and the proposed guardian will need to consent to a criminal background check. If the Petition seeks appointment of a conservator we will assist that individual in applying for a bond.
Notify the Proposed Ward and Complete the Evaluation
After the Petition is filed your loved one (now called the “proposed ward”) will be served with notice. This means that a serving officer, often dressed in plain clothing but sometimes dressed in uniform, will deliver to the proposed ward a copy of the filed Petition.
The notice will also inform the proposed ward that he must undergo an evaluation by a court-appointed evaluator. This is a physician, psychologist, physician assistant, nurse practitioner, professional counselor, or licensed clinical social worker, who will meet with the proposed ward and then write a report for the court’s use in determining whether the appointment of a guardian and/or conservator is necessary. The evaluation may be held where the proposed ward lives, or at the evaluator’s office. The proposed ward’s attorney may be present at the evaluation. If the evaluator agrees that a guardian and/or conservator should be appointed, the court will schedule a hearing.
Appoint an Attorney for the Proposed Ward
The court also appoints an attorney to represent the proposed ward, unless he has retained his own counsel. The law requires that the proposed ward have separate representation as, while the petitioner likely has the proposed ward’s best interests at heart, the result of a successful Petition is the removal of legal rights from the proposed ward.
The proposed ward should have the opportunity to meet or speak with his court-appointed attorney before the hearing. They will decide whether the proposed ward will attend the hearing. The proposed ward has a right to attend, but the right can be waived if he does not wish to be present.
If they have not previously met, the proposed ward and his appointed counsel will meet privately before the hearing begins. This is important as the attorney’s job is to inform the proposed ward regarding the Petition and the proceedings, to get feedback regarding the proposed ward’s wishes, and to answer any questions the proposed ward may have. It is the attorney’s job to advocate for the proposed ward’s position, whether that position is in alignment with or adversary to the petitioner’s.
In some circumstances the court also appoints a guardian ad litem (GAL) for the proposed ward. A GAL is an individual (usually an attorney) appointed for the purpose of reviewing all parties, documents, and circumstances, and making reports and recommendations to the court according to what is in the best interest of the proposed ward. It is important to distinguish between a court-appointed GAL and a court-appointed attorney for the proposed ward. The proposed ward’s counsel advocates for the proposed ward’s interests, while the GAL makes recommendations
about what may be best for the proposed ward, even if it is not necessarily what either party wants.
Attend the Guardianship or Conservatorship Hearing
The Petitioners and any witnesses who will testify will attend the hearing. While it isn’t necessary to wear your “Sunday best,” it is important to dress appropriately for court. That means a polo shirt or dress shirt and slacks for men, and a dress or nice shirt and slacks for ladies (no shoulders showing). Dressing properly is showing respect for the court.
Guardianship and conservatorship hearings are often held in a small courtroom or in a conference room, and (if uncontested) tend to be relaxed proceedings. A judge will preside over the hearing, and there will be a table for the petitioner and his legal counsel, as well as a table for the proposed ward and his counsel. The judge may allow the proposed ward to sit with his family if it makes him more comfortable.
During the hearing it is the job of the petitioner and his attorney to present evidence to the court regarding the facts and circumstances that show a guardianship and/or conservatorship is necessary. Your attorney will ask you questions about the proposed ward and your relationship with him. You will be asked pointed questions about what the proposed ward can and cannot do, and how he has responded to situations in the past. You will be asked whether the proposed ward has the capacity to make or communicate significant responsible decisions concerning his health or safety, as well as concerning his property if you are pursuing a conservatorship.
The proposed ward’s legal counsel and the judge may ask questions as well. It is unlikely that you will be asked any questions to which you do not already know the answer. These are just questions about your loved one and the reasons that you believe he needs a guardian and/or conservator. There is no need to be nervous.
After the petitioner has made his case, the proposed ward’s attorney has the opportunity to call witnesses and present any evidence that may benefit the proposed ward. Your attorney and the judge may ask questions of those witnesses as well.
At the conclusion of the hearing the judge will make two decisions. One, has the petitioner proven that the proposed ward meets the legal standard to have his legal rights removed and to have a guardian and/or a conservator appointed on his behalf? And two, if so, who is best suited for each of those roles?
Receive the Court’s Decision and Letters of Appointment
If the judge determines that the petitioner has met his burden of proof and that a guardianship and/or conservatorship is necessary, the guardian and/or conservator will take an oath and the court will issue a Final Order and Letters of Guardianship and/or Letters of Conservatorship. These Letters are the guardian’s and the conservator’s official authority to act on behalf of the ward. If there are any other steps necessary to finalize the guardianship or conservatorship, your attorney will guide you through that process.
From the initial filing of the Petition to the grant of the Final Order, the process of pursuing a guardianship or conservatorship can take several months. However, with open communication and cooperation with your attorney the process does not have to be a difficult one. As always, please let us know how we can be of assistance to you and your family.
What Rights Does a Person Retain Under Guardianship or Conservatorship?
Although guardianship and conservatorship may limit an individual’s ability to make certain decisions independently, Georgia law provides important protections for individuals subject to these arrangements.
A person under guardianship or conservatorship retains certain legal rights, including:
— The right to receive assistance from a guardian or conservator who acts in their best interests.
— The right to the least restrictive form of assistance appropriate for their individual circumstances.
— The right to communicate freely and privately with others, subject to applicable court orders.
— The right to challenge or request modifications to the guardianship or conservatorship.
— The right to seek restoration of their legal rights when the need for court-appointed assistance no longer exists.
Additionally, the appointment of a guardian or conservator does not automatically determine whether someone can vote or make a valid will.
Georgia courts are required to consider the individual’s needs, abilities, and personal preferences when determining the appropriate scope of guardianship or conservatorship. The goal is to provide necessary protection while preserving as much independence as reasonably possible.
What Are a Guardian’s or Conservator’s Responsibilities After Appointment?
Once appointed by a Georgia Probate Court, guardians and conservators have ongoing responsibilities to the individuals they represent. These duties continue throughout the guardianship or conservatorship and may include regular reporting to the court.
Responsibilities of a Guardian
A guardian is generally responsible for making decisions concerning the person’s personal care, health, safety, and living arrangements. Guardians must act in the person’s best interests while encouraging independence and participation in decisions whenever possible.
In Georgia, guardians must file an initial Personal Status Report within 60 days of appointment and subsequent reports within 60 days after each anniversary of appointment. These reports provide the court with information about the person’s condition, needs, and living arrangements.
Responsibilities of a Conservator
A conservator is responsible for managing and protecting the financial assets and property of the person under conservatorship. This may include managing accounts, paying authorized expenses, maintaining financial records, and overseeing investments or real estate.
Georgia conservators generally must file an inventory and asset management plan within two months of appointment. They must also submit annual financial returns and updated management plans to the Probate Court.
Some financial transactions require additional court approval, depending on the nature of the transaction, the approved budget, and the powers granted to the conservator.
Both guardians and conservators must comply with applicable court orders and fulfill their fiduciary obligations throughout their appointments.
Are There Alternatives to Guardianship or Conservatorship in Georgia?
Guardianship and conservatorship can provide important legal protections for individuals who cannot independently manage certain aspects of their lives. However, these arrangements may also restrict personal or financial decision-making rights.
Before pursuing guardianship or conservatorship, families should consider whether a less restrictive alternative could adequately address their loved one’s needs.
Depending on the circumstances, potential alternatives may include:
— Durable Power of Attorney: Allows an individual to authorize a trusted person to manage financial or legal matters on their behalf.
— Georgia Advance Directive for Health Care: Allows an individual to appoint a healthcare agent and document their preferences for medical treatment.
— Supported Decision-Making: Helps individuals make informed decisions with assistance from trusted family members, friends, or professionals without necessarily transferring decision-making authority.
— Representative Payee Arrangements: May allow an authorized individual or organization to manage certain Social Security benefits for someone who needs assistance handling those payments.
These alternatives are not appropriate in every situation. For example, an individual generally must have the necessary legal capacity to execute a valid power of attorney or advance directive.
Speak to a Georgia Elder Law Attorney Today
When less restrictive options cannot provide adequate protection, seeking guardianship or conservatorship through the Georgia Probate Court may be necessary. An experienced elder law attorney can help families evaluate their available options and determine an appropriate course of action.