We want to care for loved ones, especially when they cannot care for themselves. Whether it’s a child in need of support or an adult who is no longer capable of caring for themselves, guardianship can help ensure protection and care for someone in need. It might feel unpleasant to be confronted with your loved ones’ needs, especially if they’ve been your caretakers.
But when your parents or grandparents can no longer make their own medical or financial decisions, it’s critical that you protect them.
Georgia law allows a petitioner to assume responsibility for their adult family members or minors without parents. A guardianship or conservatorship lawyer can draft and file the petition. The Gentry Law Firm understands how difficult it can be to make this decision, but we’re ready to help you avoid complications and get your loved one the help they deserve.
What is a Guardianship or Conservatorship in Georgia?
A guardianship typically applies to situations in which a child has no natural, testamentary, or permanent guardian or their parents are unable to care for them for a prolonged period of time. A guardianship may be preferable in situations where the child’s parents are temporarily unable to care for them. Adoption, on the other hand, typically involves permanently terminating the biological parents’ rights and transferring them to the child’s adoptive parents.
There can be several situations when Georgia’s courts may consider appointing a guardian for an adult. If an adult becomes incapacitated by illness or disability, a judge may decide to remove the rights of an adult to make decisions about their life.
This is not a decision that judges make lightly and is usually only appropriate when the adult cannot take in information, make informed decisions, or communicate those decisions. When a guardianship is granted, the courts still want the ward to have as much control over their life as possible, so an order for guardianship will take the ward’s actual needs into account without removing their right to make decisions about anything they are able to.
Types of Guardianships
There are two broad categories guardianships fall under — guardianship of the person or conservatorship of their property. It’s possible to apply for one or both things. Guardianships can limit the ward’s ability to enter into contracts, get medical treatment, decide where to live, or bring or defend court cases.
Under a conservatorship, the ward may be unable to buy or sell property and manage their own financial or business affairs.
Emergency Guardianships or Conservatorships
In extreme cases, it’s possible to apply for emergency guardianship or conservatorship. These usually apply when the potential ward is at an immediate or substantial risk of death or serious physical injury, illness, or disease.
Applying for emergency guardianship follows a similar process as a normal one, but it is streamlined. The guardianship is also temporary: it lasts until a normal hearing about the matter happens, or it expires after 60 days, whichever comes first.
Knowing When to Pursue a Georgia Guardianship or Conservatorship
Before you decide to pursue guardianship, you should ensure that it’s the best solution for the potential ward. You need to have proof that they need assistance making significant decisions or cannot function without help.
There are several scenarios that allow you to seek guardianship. For instance, if the potential ward suffers a catastrophic health event that impairs their cognitive ability, like a stroke, it might be in their best interest to step in and help them.
Other indications of a possible need for guardianship includes:
- The potential ward is not eating properly
- They’re refusing to take prescription medications
- They begin hoarding
- They refuse to leave an unsafe living environment
- They stop bathing or have poor personal hygiene
They could require a conservatorship if they’re making bad decisions regarding their spending, at risk for falling for scams, or they’re being exploited financially.
A Guardian’s Responsibilities
A guardian is accountable for their ward’s needs, making decisions about their support, care, education, health, and welfare. If the ward is able to make some decisions for themselves, such as where they want to live, then they can. Their guardian could be in charge of scheduling medical appointments, making sure their ward has enough to eat, and ensuring their living arrangements are adequate.
Conservators control their ward’s property and financial affairs. They file taxes, pay bills, create budgets, and take care of their ward’s financial investments. They won’t make decisions about their ward’s physical needs, unless they are both their conservator and guardian.
The Guardianship & Conservatorship Process
Applying for guardianship is a complicated process, so hiring an experienced lawyer is essential. You must submit a petition to the appropriate probate court. Your petition must have two interested parties’ signatures or one party’s signature and an affidavit from someone who’s examined the potential ward in the last 15 days. That might be a doctor who has observed a decrease in cognitive function, for instance. In Georgia, you can file a petition once every two years if guardianship isn’t granted in your first attempt.
Once you’ve submitted your petition and paid the requisite filing fee, a probate judge will examine your request. If they accept the application, a notice will be served to the potential ward, and they will be provided a copy of the petition. The potential ward will be evaluated, and they can hire an attorney or be appointed one. In some cases, a guardian ad litem may be appointed. This is an objective party whose sole interest is determining what is best for the potential ward. They recommend the best action the court should make after finding the facts of the case.
After the evaluation, the judge will review the results, and a hearing will be scheduled. There may be questions for the potential ward, the interested party, or anyone opposed to the guardianship. The judge will then rule on whether guardianship should be permitted. The entire process can take about 90 days, but the judge may decide there should be a guardianship trial, which could take longer.
FAQs about Guardianships or Conservatorships
Who Can Become a Guardian or Conservator?
Any individual or entity can act as a guardian or conservator for a minor or an incapacitated adult, provided they are not incapacitated themselves. In some instances, the potential ward can appoint their guardian, but the court must approve them. There is a preference order for guardians: anyone nominated by the ward; a spouse or someone nominated by the spouse of the ward; an adult child; a parent; a guardian appointed for the ward when they were a minor; a guardian appointed by the state in previous cases; a friend or relative; a volunteer; or the county guardian.
Some people are not qualified to be guardians. Minors, wards, protected peoples, anyone with a conflict of interest, or someone who works at the same long-term stay facility as the ward cannot be guardians.
What Rights Does the Ward Maintain as an Adult?
A ward keeps all the rights that aren’t assigned to their guardian. They can communicate with others. They can retain their civil, political, and property rights with due process. Their private property is still theirs, and no one can use it without permission. They can petition the court to have guardianship changed or ended if they choose to do so.
Are There Consequences for Mistreating Wards?
Becoming a guardian is a serious responsibility. The guardian controls several aspects of someone’s life, is entrusted with their health and wellbeing, and in some cases, their wealth. If the guardian takes advantage of the ward, they could be charged with “abuse by guardian”. That covers acts of physical abuse, malfeasance, theft, or neglect, among others.
Any guardian who abuses their ward could be ordered to pay reparations, and they might face criminal charges.
Why Should I Hire a Lawyer to Seek a Guardianship?
The decision to seek guardianship is not a light one. If your loved one’s circumstances mean they could benefit by guardianship, you could pursue it alone. However, because of the significance of the action you’re taking and the two-year period you’d have to wait if you’re denied, it’s best to work with an attorney with experience in the Georgia legal system. Becoming a guardian is a highly sensitive process, so finding an attorney who can help you achieve your goal the right way the first time is critical. You need to find someone who empathizes with your situation and someone you can trust.
Get Help with Your Guardianship from The Gentry Law Firm
If you need to become a guardian for an adult or child in your life, you need to find an attorney who understands Georgia’s laws and can simplify the process for you. The lawyers at The Gentry Law Firm can ensure your experience is as smooth as possible.
Since Attorney William C. Gentry founded our firm, he has focused on helping families. Let us help you take care of your needs so you can help your family. Call 770-425-5573 or use the contact form to schedule your free initial consultation.