What is a Guardianship?
A guardian is granted custody and control over an incapacitated individual by the court. Guardians are responsible for making sure the ward has adequate medical attention, an acceptable 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 who has an interest 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:
Natural – By Georgia law, each parent is considered to be 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.
Testamentary – Every parent may nominate a testamentary guardian or conservator for his/her minor child in his/her 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)
Standby – When a health care professional has determined that a parent or guardian is unable to care for a minor because of a physical, mental, or health condition, a “standby” guardian may be designated. The appointment of a standby guardian, however, does not relieve a parent of his/duty to provide support for the minor. (4) A standby guardianship is generally effective for 120 days unless it is revoked by the designating individual. (5)
Temporary – 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 parental rights of the parents. Temporary guardians hold all of the powers of a natural guardian, except temporary guardians may not receive 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 the temporary guardianship is entered.(7)
Permanent – A permanent guardian may be appointed for a minor who has no living parents or, after notice to the parents without objection, when the parents fail to properly care for the minor. (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 his/her health or safety. (12) Likewise, a conservator may be appointed when there is clear and convincing evidence that the adult lacks sufficient capacity to make such decisions regarding his/her property. (13)
The issue of when a guardian or conservator is needed depends not on whether the proposed ward has mismanaged his/her affairs, but whether he/she lacks the capacity to manage his/her affairs properly.
Before a guardian or conservator can be appointed, the proposed ward must be determined by the court to be incapacitated, and no one may be appointed as the guardian or conservator of an adult unless such appointment is found to be in the best interest of the adult. (14)
Who may serve?
Any individual or entity may serve as the guardian or conservator of an incapacitated adult unless the individual is himself a minor, ward, or protected person, or he has any type of 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 his/her guardian or conservator in the event that a court subsequently finds the adult to be 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 for the purposes of consenting 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 his/her parent;
- Any parent for his/her adult child;
- Any adult for his/her brother or sister;
- Any grandparent for his/her grandchild;
- Any adult grandchild for his/her grandparent; or
- Any adult niece, nephew, aunt, or uncle of the patient who is related to the patient in the first degree. (21)
Every minor and ward has the general right to have a guardian or conservator who will act in his/her best interest. (28) A guardian or conservator is accordingly required to respect the dignity of the minor and ward. (29)
Rights of Minors – The minor has the right to have his/her property utilized as necessary for his/her support, care, education, health, and welfare and to initiate and prosecute any action relating to the guardianship or conservatorship. (30)
Rights of Wards – The ward has a right to bring an action on his/her own behalf in the event that he/she is unjustly denied a right or privilege. (32) However, upon the creation of a guardianship or conservatorship of an adult, the ward may lose some legal rights, including the right to marry, enter into contracts, consent to medical treatment, establish a residence, change his/her domicile, revoke a revocable trust, or make certain business decisions. (31)
The ward has the right to have his/her property utilized to provide adequately for his/her support, care, education, health, and welfare and the right to communicate freely and privately with persons other than the guardian or conservator. Accordingly, a ward is entitled to the least restrictive form of guardianship or conservatorship assistance. (32)
- O.C.G.A. § 29-1-1(11).
- O.C.G.A. § 29-2-3.
- O.C.G.A. § 29-2-4(b).
- O.C.G.A. § 29-2-10.
- O.C.G.A. § 29-2-13.
- O.C.G.A. § 29-2-6(f).
- O.C.G.A. § 29-2-8(a).
- O.C.G.A. § 29-2-14.
- O.C.G.A. § 29-3-6.
- O.C.G.A. § 29-1-1(1).O.C.G.A. § 29-4-1(a).
- O.C.G.A. § 29-5-1.
- O.C.G.A. §§ 29-4-1; 29-5-1.
- O.C.G.A. §§ 29-4-2; 29-5-2.
- 16 O.C.G.A. §§ 29-4-10(a), 14; 29-5-10(a),
- O.C.G.A. §§ 29-4-3; 29-5-3.
- O.C.G.A. §§ 29-4-14, 16.
- O.C.G.A. §§ 29-5-14, 16.
- O.C.G.A. § 29-4-18(a)(6).
- O.C.G.A. §§ 29-4-10(a); 29-5-10(a).
- O.C.G.A. §§ 29-2-22(a); 29-4-23(a).
- O.C.G.A. §§ 29-2-22(b); 29-4-23(b).
- O.C.G.A. §§ 29-3-22(a); 29-5-23(a).
- O.C.G.A. §§ 29-3-22(b); 29-5-23(b)
- O.C.G.A. §§ 29-2-21(a); 29-4-22(a).
- O.C.G.A. §§ 29-2-20; 29-3-20.
- O.C.G.A. §§ 29-2-21; 29-3-21.
- O.C.G.A. §§ 29-2-20(a); 29-3-20(a).
- O.C.G.A. §§ 29-4-20; 29-5-20.
- O.C.G.A. §§ 29-4-21; 29-5-21.
- O.C.G.A. §§ 29-4-20(a); 29-5-20(a).
The Law Office of Paul Black
The Law Office of Paul Black