The personal right to make decisions about living one’s own life is taken for granted by most adults. Yet, inevitably, illness or disability may render some adults incapacitated during the course of their lives and thereby prevent them from making responsible decisions concerning their life or property. Guardianship is one means of substituting the judgment of another person for that of an incapacitated individual. Guardianship is a legal relationship created by a court when the Judge appoints someone (a Guardian) to make decisions for another person who has been proven to be incapacitated (a Ward).
Types of Guardianship
There are two main types of guardianship - of the person and of the property. A guardianship of the person (now called guardianship) may remove from the incapacitated person the power to contract marriage, to make other contracts, to consent to medical treatment, to establish a residence, and to bring or defend an action in court. A guardianship of the property (now called conservatorship) may remove from the ward the power to bring or defend actions in court, to make contracts, to buy and sell property, and to manage their business and financial affairs. Often, a court appoints one person as guardian and conservator.
Within these two main categories, a guardianship can be either permanent or emergency . Also, a guardianship can be total (granting all powers) or the guardian’s or conservator’s powers may be limited, with the ward retaining some powers which could have been removed. Georgia law is progressive in this regard, recognizing that not all incapacitated persons are incapacitated in the same manner and to the same degree. The law specifically requires that guardianships shall be “designed to encourage the development of maximum self-reliance and independence of the ward and shall be ordered only to the extent necessitated by the person’s actual and adaptive limitations.” O.C.G.A. 29-5-7(h). For example, just because a person does not possess the judgment to make contracts does not necessarily mean that he or she cannot decide where to live. Finally, a guardianship can be created on an emergency basis if there is an immediate, clear and substantial risk of death, serious injury, illness or disease, or irreparable waste or dissipation of the person’s assets. Please understand that if an emergency guardianship/conservatorship petition is filed with the Court and if granted by the Court, then the emergency guardianship/conservatorship would ONLY BE VALID FOR 60 days. Before the expiration of the emergency guardianship/conservatorship, a PERMANENT guardianship/conservatorship petition would need to be filed with the Court in order for the guardianship/conservatorship to remain in place. A permanent guardianship/conservatorship petition usually takes about 4 to 6 weeks to process and grant by the Court because of the complex sequence of events that must occur in a specific, timely manner. If an emergency guardianship/conservatorship petition is filed with the Court and then a PERMANENT guardianship/conservatorship petition is filed with the Court, then the ENTIRE amount of filing fees must be paid a SECOND TIME for the permanent guardianship/conservatorship proceeding. Adult guardianships/conservatorships usually cost about $500 to $600 for EACH petition filed with the Court.
Who Can Be A Guardian
Any person who is not a minor, is not incapacitated or does not have a substantial conflict of interest can be a guardian. The law lists preferences, starting with a person chosen by the ward in writing prior to incapacitation. A court may pass over a preferred person for good cause. If a suitable person is not available, the Director of the county Department of Family and Children Services may be appointed.
Procedure for Appointment of a Guardian
Any person knowledgeable about and interested in the Ward’s welfare may institute guardianship proceedings. (The person petitioning for the appointment of a guardian must use the applicable Georgia Probate Court Standard Form (GPCSF), which is available at the courthouse or online at the official statewide Probate Court web site, www.gaprobate.org.) If the facts stated in the petition sufficiently support the Petitioner’s claim that the proposed Ward is incapacitated, the Court orders an evaluation by a doctor or other medical professional, as appropriate. The petition and the order must be served personally on the proposed Ward. Unless the Court is notified within two days that the Ward has an attorney, the Court appoints one. If the evaluation report and the pleadings together establish probable cause of incapacity, the Court holds a hearing to determine whether a guardianship should be ordered.
The fees for any guardianship proceeding must be paid upon filing the petition with the Probate Court. The Probate Court will accept cash, money orders, or personal checks made payable to “Probate Court.”
The filing fees payable to the Probate Court are:
||Alternative Dispute Resolution Program - mandated fee on all civil cases
||Library Law Fee
||Indigent Defense Fund Fee
||Per page, Recording fee
||Sheriff Service Fee (or this fee may be higher if a process server is required, especially if the proposed ward is currently located outside of Carroll County)
||Statutory fee for Court appointed medical professional
||Statutory fee for Court appointed attorney for the proposed Ward. The attorney may be awarded additional fees if extra work is required.
||for Guardian Ad Litem (if needed)
||for recording in Superior Court (if needed)
||Per page for additional recording in Superior Court (if needed)
||for service of Final Order on Ward
Rights and Duties of Wards and Guardians
Duties and Powers of the Guardian
The Guardian has the duties and powers reasonably necessary to provide adequately for the support, care, education and well-being of the ward from the ward’s assets or public assistance, as necessary, even to the extent of participating in legal proceedings where appropriate or advisable. Subject to some restrictions, the guardian may give medical consent for the ward and, generally, may establish a ward’s abode. However, the Americans with Disabilities Act has been interpreted under certain circumstances to require that a ward receive care in the least restrictive setting necessary.
A guardian of the person shall respect and maintain the individual rights and dignity of the ward at all times. The guardian shall be reasonably accessible to the ward and shall maintain regular communication with the ward. A status report describing the ward’s general condition, living situation, progress, development and needs, plus any recommendations for changes in the guardianship must be filed four months after appointment and every year (annually) on the anniversary of the guardian’s appointment.
Upon order from the court, a guardian of the property may sell, lease, encumber or exchange property of the ward for payment of the ward’s debts, for support and education of the ward or dependents of the ward, or for reinvestment. The guardian of the property must file both an inventory with the Court four months after appointment and thereafter an annual return accounting for income received and expenditures made on the ward’s behalf. The guardian of the property is entitled to commissions for what he or she has received and paid out. All guardians must file a petition in court to obtain permission to perform any act not specifically authorized.
Rights of the Ward
Georgia recognizes that making personal decisions is the most basic of rights. By law, no person is presumed to be incapacitated and, out of respect for a person’s dignity, the right to make any decision cannot be casually removed. Hence, a ward retains those rights not removed by statute as well as those rights the court specifically exempts because it finds their removal unnecessary.
In all cases, a ward cannot be denied any civil, political, personal, or property right without due process of law. The ward has the right to communicate freely and privately with others. His or her property must be used for his or her support, care, education, and well-being. The ward also has a right to petition to have the guardianship modified or terminated or to claim a right or privilege which has been unjustly denied.
If less intrusive means are unavailable, a guardianship can be an appropriate device to provide for substituted decision-making on behalf of an incapacitated adult. Georgia law recognizes the dignity of all human persons by authorizing the removal of decision-making abilities only to the extent necessitated by the limitations of the ward. Guardians, accordingly, have special duties to the ward and to the court. The ward retains all rights not removed and can petition the court to have his or her right to make decisions restored. When the law and its spirit are followed, a guardianship can be a relationship which can help fulfill and educate the ward and the guardian as well.