Georgia Law of Guardianship
Authored By: Georgia Department of Human Resources, Division of Aging Services
GEORGIA LAW ON GUARDIANSHIP
Natalie Thomas, Attorney at Law
Georgia Department of Human Resources
Division of Aging Services
1. Who can be a guardian?
Any person not otherwise disqualified may be appointed guardian.
2. If there are a number of family members, who has the right to be chosen guardian first?
-someone named by the ward in writing, signed and attested to by 2 witnesses before the petition was filed and at a time when the ward was of sufficient mental capacity according to the court;
-parent or person named by deceased parents in will or other written document which is signed and attested to by 2 witnesses;
-guardian of the person as a minor or the guardian over the person if now going for property or guardian of property if now going for guardianship over the person;
-relative or other person who has been caregiver and with whom the ward has lived;
-person named by any of the previously mentioned; other relatives; persons providing money or other.
3. What happens if there is no one to be guardian?
The court can appoint the Director of the County DFCS where the ward lives or is being cared for. (the director can then delegate other employees to handle the day-to-day duties of the guardianship) DFACS then serves as guardian of the person.
The court then appoints the county guardian to be the guardian of the ward's property.
4. What is DFCS' policy on serving as guardians for persons in long-term care facilities?
If there is a need for a guardian of a person who is institutionalized, that need will be evaluated by DFCS on an individual basis. The staff at the facility will be responsible for identifying persons who may be able to serve as guardians. Guardianship is only going to be considered as a last resort. It will be pursued only if the legal authority of the guardianship it the only way that the individual can be protected.
5. Are there any people who can't be appointed as guardian?
-others who have been adjudicated incompetent
-those who refuse to serve a guardian
-those having a conflict of interest unless the court determines the conflict is not substantial and the appointment of the person as guardian.
6. Is the guardian required to meet the ward's expenses out of his or her own pocket?
No, nor is the guardian personally liable to third parties for the acts of the ward solely because he or she is the guardian.
7. What power over the ward does the guardian have?
power to establish the ward's place of residence within or outside the state;
power to sue on behalf of the ward;
power to give consent/approval for the ward to receive medical treatment; and,
to control and retain the possessions of the ward.
8. Are there certain things that guardians cannot do?
Yes, such as:
-the guardian cannot institute divorce proceedings for the ward; that kind of action is strictly personal and would necessitate court intervention;
-the guardian cannot mix the wards funds with his or her own to be used indiscriminately; and,
-the guardian cannot dispose of the ward's assets without court's knowledge and approval;
9. What responsibilities does the guardian have to the ward?
The guardian must do what is reasonably necessary to provide adequately for the support, care, education, and well-being of the ward and that includes:
respecting and maintaining the individual rights and dignity of the ward at all times;
making arrangements from any funds available from the ward's estate or third parties for the
- appropriate habilitation
- and education of his or her ward in the least restrictive environment according to the needs and resources of the ward.
being reasonably accessible to his ward;
taking reasonable care of clothing, furniture, vehicles and other personal effects of the ward which are with the ward.
10. How is the guardian held accountable?
within 4 months after the appointment as guardian, the guardian must file a personal status report which contains (a) specific description by the guardian of the ward's general condition, living situation progress, development and needs; and (b) recommendations for any changes needed in the guardianship Order.
within 2 months after every anniversary of the appointment as guardian, a personal status report must be filed with the court.
11. Can the guardian have powers not automatically given to a guardian?
Yes, if the court has imposed additional powers and by the same token, if the court has reduced the guardian's powers, this will be evidenced in writing from the court.
12. Who can petition for guardianship?
Any interested person or persons. The Department of Human Resources may petition for guardianship over a person if the person is receiving services from the dept. or whom the department believes to be eligible for such services.
13. On what basis can a person be deemed incapacitated and in need of a guardian?
physical illness or disability
chronic use of drugs or alcohol.
to the extent that the person lacked sufficient understanding or capacity to make significant responsible decisions or the ability to communicate such decisions concerning his person or is incapable of managing his estate.
14. Will a guardian have anything in writing to prove he or she is that person's guardian?
Yes, the person will have an Order form the Probate Court appointing the person to the post of guardian or a document called "Letters of Guardianship".
15. Once the person has the status of "ward", what rights does the ward give up?
When guardianship is over the person:
to contract marriage
to make contracts
to consent to medical treatment
to bring or defend court actions
to establish residence or stay-place
When guardianship is over property:
to bring or defend court actions
to make contracts
to buy, sell or otherwise dispose of or encumber (use as collateral) real property (land) personal property (anything owned other than land) and,
to enter into business transactions.
The right of the ward to vote and to make a Will are matters that are independently determined.
16. Is the ward basically captive and at the whim of the guardian as far as his or her friends are concerned?
NO. Each ward has the right to communicate freely and privately with persons other than the guardian unless
otherwise ordered by the court.
17. Since the ward can't bring any suits, what happens if the ward has a complaint against the guardian?
The ward, his representative, or his attorney may always file a petition in the probate court alleging that the ward is being unjustly denied a right or a privilege granted by law. The court has the authority to conduct a judicial inquiry and to is appropriate orders to correct any abuse of the guardianship law.
Emergency Guardianships: A guardian can be appointed in 3-5 days if facts establish an immediate, clear and substantial risk of death or serious physical injury, illness or disease or of waste or dissipation of the estate of the proposed ward unless an emergency guardian of the property is appointed.
Educational material provided by Natalie Thomas, Attorney at Law, State Legal Services Developer, for the Georgia Department of Human Resources, Division of Aging Services, 2 Peachtree Street, Suite 36.385, Atlanta, Georgia, 30303-3142. Telephone Number (404) 657-5319.
Last Updated 10/01/02