What should I know about guardianship and alternatives for adults?
Guardianship for adults
Guardianship and alternatives for adults in Georgia
- What is guardianship?
- What are alternatives to guardianship?
- Who can become a guardian or conservator?
- What are my rights and responsibilities as a guardian or conservator?
- What are the rights of an adult with a guardian/conservator?
What is guardianship?
If an adult becomes incapacitated by illness or disability, a judge might appoint someone to make decisions for that adult. This is called guardianship. Guardianship is a legal process that removes the rights of an adult to make decisions about their own life. Guardianship should only be considered if it is absolutely necessary.
Before a court appoints a guardian, it must determine that the adult cannot:
- Take in information,
- Make an informed decision, and
- Communicate that decision.
Georgia law says that guardianships should help the adult develop as much independence as possible. A guardianship order should:
- take into account the adult’s actual needs, and
- not take away any decisions that they are capable of making.
Types of guardianship
There are two main types of guardianship:
- guardianship of the person, and
- conservatorship, which is guardianship of property.
You might seek guardianship over one or both.
- Guardianship of the person can limit the adult’s ability to:
- Enter into contracts (including marriage),
- Consent to medical treatment,
- Decide where to live,
- Bring and defend court cases.
- Conservatorship can take away the adult’s power to:
- Buy and sell property,
- Manage their own financial or business affairs.
Both types of guardianship can be either permanent or temporary. Depending on the individual, guardianship might remove some powers from the adult and leave others. For example, an adult may not be able to make complicated financial decisions but could decide where to live.
Emergency guardianships can be created if there are:
- immediate risk of death,
- serious injury,
- illness or disease, or
- a substantial loss of the adult’s assets.
Emergency guardianships are only valid for 60 days.
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What are alternatives to guardianship?
Guardianship can have a serious impact on an adult’s life. Think about whether guardianship is the only way to get the adult the help they need. If you are unsure, ask for advice. For seniors, you can contact your Area Agency on Aging, the Senior Legal Hotline, or an Elder Law Attorney. For people with disabilities, to get advice, you can contact:
- the Georgia Council on Developmental Disabilities or
- the Georgia Advocacy Office.
Guardianship proceedings can be complicated, take a lot of time, and cost a good amount of money. Before seeking guardianship or conservatorship, you should consider some of the many alternatives. These alternatives may allow you to get the adult the help they need, but not deprive them of their independence. These alternatives:
- Are less expensive than guardianship/conservatorship,
- Can be done without an attorney,
- Can be more easily changed,
- Can be tailored to give the adult the most independence possible
Alternatives for medical decisions
- Release of information. A release of information will allow you to access the adult’s medical records or to discuss medical conditions with doctors. The adult must be able to fill out a release of information form. The release can cover all medical records or just allow access to specific medical information.
- Advance Directives for Health Care. Advance directives allow adults to plan ahead for a time when they become unable to make medical decisions. The adult can decide who they want to make decisions for them and give that person directions. An advanced directive can allow the adult to nominate someone in case guardianship becomes necessary.
- Georgia Medical Consent Law. If there is no advance directive in place, Georgia’s medical consent law allows:
- In an emergency, doctors treat patients who are unable to give informed consent, or
- In a non-emergency, the next of kin can give consent if the patient is unable to do so.
Alternatives for financial decisions
- Representative Payee Status. A representative payee can be appointed if an adult gets:
- Social Security,
- Supplemental Security Income, or
- VA benefits.
- This person is appointed if the adult becomes incapable of managing their own assets. The representative payee is appointed by the Social Security Administration or Veterans’ Administration.
- Limited or joint accounts. If the adult can manage their own finances, but needs help, you could set up limited or joint accounts.
- Financial Power of Attorney. A financial power of attorney allows the adult to grant another person the ability to take care of financial matters on the adult’s behalf. This does not remove the adult’s rights. Power of attorney can be limited to specific actions and may be cancelled at any time.
Who can become a guardian or conservator?
Some people cannot become guardians or conservators. A guardian/conservator cannot be:
- A minor,
- A person with a guardian (a ward),
- A protected person,
- A person who has a conflict of interest with the adult,
- A person who works or owns the long-term care facility where the adult lives, unless they are related.
The court will appoint the person who will serve the best interest of the adult, but there is a preference order:
- An individual/person previously nominated in writing by the proposed ward,
- A spouse of the proposed ward or an individual/person nominated by the spouse,
- An adult child or an individual/person nominated by the adult child,
- A parent or someone nominated by a parent,
- A guardian was appointed while the proposed ward was a minor.
- A guardian appointed previously in Georgia or appointed in another state,
- A friend, relative, or any other individual,
- Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment,
- The county guardian.
What if the adult has nobody to serve as a guardian or conservator?
Some adults need guardians but don’t have a person who can serve in that role. When that happens, a public guardian can step in. A public guardian is a person who has been qualified by the state to act as a guardian. Some counties have a county guardian office to provide public guardians. As a last resort, the Department of Human Services can act as a guardian for adults who have no other options. The Department of Human Services cannot act as a conservator.
What are my rights and responsibilities as a guardian or conservator?
As a guardian/conservator, your rights and responsibilities will depend on what powers the order gives you. Whatever powers you are given, you have the right to make those decisions on behalf of the adult. However, you are responsible for making sure any decision you make is in the best interest and for the benefit of the adult.
A guardian of the person must respect and maintain the rights and dignity of the adult at all times. You must be available to the adult and you are responsible for being in regular communication.
As a guardian or conservator, you are responsible for filing a status report four months after the court order and then every year after that.
If you wish to make a decision for the adult that is not specifically granted by the order, you must petition the court for permission.
What are the rights of an adult with a guardian/conservator?
An adult who has a guardian/conservator keeps all rights that the court does not specifically give to the guardian. All adults with guardians have the right to:
- Communicate freely and privately with others,
- Not be denied any civil, political, personal, or property right without due process,
- Only have their personal property be used for their support, care, education, and well-being,
- Petition the court to have the guardianship changed or ended.
- How can I file for guardianship or conservatorship?
- How can I make sure guardianship/conservatorship allows the adult to have as much independence as possible?
- How can I terminate guardianship/conservatorship?
How can I file for guardianship or conservatorship?
Guardianship/conservatorship is a legal process that must be approved by a judge. You may want to consult an attorney to help you with this process. The steps to get guardianship are:
- File a petition. File a petition for guardianship and/or conservatorship with the probate court in the county where the adult lives.
- When you file the petition you must pay the initial filing fees.
- Unless two or more people file the petition together, you must include a statement from a:
- psychologist, or
- licensed clinical social worker who has examined the adult within the past 15 days.
- Court appointed examination. If the petition is complete, the court will appoint a physician, psychologist, or social worker to visit and evaluate the adult.
- Court appointed attorney. Unless the adult already has an attorney, the court will appoint an attorney to represent them and their interests.
- Hearing. The court will hold a hearing to hear all of the evidence and decide whether a guardian is necessary.
- Order and Oath. If the judge approves the petition, you (or whoever the court appoints as guardian) will take an Oath of Office and become a guardian. If the judge denies the petition, you cannot try to get guardianship for another two years unless the adult’s circumstances change.
How can I make sure guardianship/conservatorship allows the adult to have as much independence as possible?
- Make sure the guardianship/conservatorship is limited to necessary decisions.
- Actively communicate with the adult to understand what they want and need. Work to honor their requests.
- Ask the people who work and support the adult to consider their wishes and desires, even though they have a guardian.
- As soon as it becomes unnecessary, terminate the guardianship/conservatorship.
How can I terminate guardianship/conservatorship?
The process to terminate guardianship or conservatorship is:
- File petition: To stop guardianship/conservatorship, you must file a Petition for Restoration of Rights. The petition must include two statements from people who know the adult or who have evaluated the adult. File with the probate court. This petition can be filed by:
- The guardian/conservator, or
- Any other interested person, or
- The adult under guardianship.
- Evaluation: The court will order an independent evaluation of the adult.
- Hearing: The court will hold a hearing to decide whether guardianship will be terminated.
- Find a Petition for the Appointment of a Guardian and/or Conservator for a Proposed Ward form on the Georgia Supreme Court website.
- Find a Petition for the Appointment of an Emergency Guardian and/or Conservator for a Proposed Ward form on the Georgia Supreme Court website.
- Find other guardianship forms on the Georgia Supreme Court website.
- Learn more about advance directives for health care and find the Georgia Advance Directive for Health Care form on the Georgia Division of Aging Services website.
- Find an Authorization for Release of Information form on the Georgia Department of Behavioral Health & Developmental Disabilities website.
- Read more about becoming a Representative Payee on the Social Security Administration website.
- Learn more about becoming a financial power of attorney and find the proper forms on the Georgia Division of Aging Services website.
- Read more about guardianship and guardianship alternatives in the Georgia Council on Developmental Disability’s guide, “Thinking about Guardianship?”
- Learn about Guardianship Law in Georgia on the Georgia Division of Aging Services Website.