What is a Guardianship?
A guardianship is a legal relationship between a court-appointed guardian and an incapacitated person or minor child. The guardianship arrangement is established to provide for the care and protection of a person who cannot care for themselves.
Guardians are responsible for ensuring the ward has adequate medical attention, a place to live, adequate food, etc. This is in contrast to a conservator, who looks after the financial side of a person’s well-being.
Any “interested person” in Georgia may file a petition for the appointment of him or herself or some other qualified person as guardian of an incapacitated person and, if so appointed by the judge in a court such as Dekalb, may serve in that capacity.
An “interested person” is an individual interested in the welfare of an incapacitated person and is not himself a minor, ward, or protected person.
Creation of Guardianships for Minors
A minor is anyone who is “under 18 years of age and who is not emancipated.” (1) Georgia law identifies five categories of guardians for a minor:
By Georgia law, each parent is considered the “natural guardian” of their minor child. (2) If the parents are divorced, and one parent has sole custody of the minor, that parent is also the sole natural guardian.
Every parent may nominate a testamentary guardian or conservator for their minor child in their Will. Upon probate of the Will, letters of guardianship/conservatorship will be issued to the individual nominated without notice or hearing by the probate court unless the minor has another living parent (natural guardian) or the individual nominated is unwilling the serve. (3)
When a health care professional has determined that a parent or guardian cannot care for a minor because of a physical, mental, or health condition, a “standby” guardian may be designated.
However, the appointment of a standby guardian does not relieve a parent of their duty to support the minor. (4) A standby guardianship is generally effective for 120 days unless the designating individual revokes it. (5)
Any individual having physical custody of a minor may file a petition to be appointed a temporary guardian of the minor. The granting of temporary guardianship of a minor does not permanently terminate the parents’ parental rights.
Temporary guardians hold all of the powers of a natural guardian, except temporary guardians may not receive the personal property of the minor without first becoming the legally qualified conservator of the minor. (6)
A temporary guardianship terminates on the date one of the following occurs:
- The minor reaches the age of 18,
- The minor is adopted,
- The minor is emancipated,
- The minor dies,
- The temporary guardian dies,
- Letters of guardianship are issued to a permanent or testamentary guardian, or
- A court order terminating temporary guardianship is entered. (7)
A permanent guardian may be appointed for a minor with no living parents or, after notice to the parents without objection when the parents fail to care for the minor properly. (8) Permanent guardianship of a minor, though similar, is not the same as legal custody of a minor, which may be granted only by superior or juvenile courts in Georgia.
Creation of Guardianships and Conservatorships for Adults
An “adult” is an individual who is either 18 years of age or older or an emancipated minor. (11) A guardian may be appointed by the probate court for an adult when there is clear and convincing evidence that the adult lacks sufficient capacity to make or communicate significant responsible decisions regarding their health or safety.
(12) Likewise, a conservator may be appointed when there is clear and convincing evidence that the adult cannot make such decisions regarding their property. (13)
The issue of when a guardian or conservator is needed depends not on whether the proposed ward has mismanaged their affairs but whether they cannot manage their affairs properly.
Before a guardian or conservator can be appointed, the court must determine the proposed ward to be incapacitated. No one may be appointed as the guardian or conservator of an adult unless such an appointment is in the adult’s best interest. (14)
Who May Serve?
Any individual or entity may serve as the guardian or conservator of an incapacitated adult unless the individual is a minor, ward, or protected person or has any conflict of interest with the proposed ward. (15) Any “interested person” may file a petition in the probate court of the county where the proposed ward is “domiciled or found.” (16)
Nomination of A Guardian/Conservator – An adult may nominate an individual to serve as their guardian or conservator if a court subsequently finds the adult incapacitated. A spouse, adult child, or parent may also nominate an individual to serve as the guardian or conservator of the adult. (17)
Appointment of Emergency Guardians – An emergency guardian may be appointed for an adult when there is an immediate and substantial risk of death or serious physical injury, illness, or disease. (18)
Appointment of Emergency Conservators – An emergency conservator may be appointed for an adult when there is an immediate and substantial risk of irreparable waste or dissipation of the proposed ward’s property. (19)
Appointment of Temporary Medical Consent Guardians – Appointment only for a limited time and only to consent to medical treatment not prohibited by law. (20)
Such individuals may be designated in an advance directive for health care or durable power of attorney for health care or otherwise by the relation in the following order of priority:
One spouse for the other;
Any adult child for their parent;
Any parent for their adult child;
Any adult for their brother or sister;
Any grandparent for their grandchild;
Any adult grandchild for their grandparent; or
Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree. (21)