In Georgia, when a person turns 18 they are considered an adult. This means they get to make their own decisions. Their parents or other adult family members are no longer authorized to make decisions on their behalf. This is the case even if the person in question has disabilities or serious medical issues that complicate their ability or capacity to make rational decisions on their own.
In cases like these, many parents or other adult family members choose to establish a guardianship. In Georgia, a guardianship is a legal relationship established by the Probate Court that allows the parent, family member or another interested adult to act on behalf of the incapacitated individual. It is the responsibility of the guardian to ensure that the person they care for is healthy and safe.
Adults can need guardians for a variety of reasons. Generally, you need to have the capacity to understand what you are doing and to make decisions about your personal, health or medical matters without assistance. If a person does not have that capacity to handle their personal, health or medical affairs, then a guardianship will be needed.
To establish a guardianship, one or more persons must first file a petition with the Probate Court in the county where the incapacitated individual (called the proposed ward) lives. One can file a petition themselves, but it’s usually best to hire an attorney to represent you as the person(s) who is trying to become the guardian(s) – called the Petitioner(s). An attorney can help the Petitioner(s) with the application process and represent the Petitioner(s) at the hearing.
The Probate Court will appoint a medical professional (doctor, psychologist or social worker) to determine the proposed ward’s capacity to handle their personal, health or medical affairs.
An individual is also appointed by the probate court (called the Guardian Ad Litem) to represent the proposed Ward throughout the entire process to ensure that his or her rights are protected throughout the process and to make sure the guardianship is in the proposed wards best interests. Usually, this individual is an attorney other than the attorney assisting and representing the Petitioner’s .
If a person does not have the capacity to handle their financial affairs, then a Conservatorship will be needed, along with a guardianship. It can be the same individuals who serve as both guardian and conservator. The process for obtaining a Conservatorship is the same as for a Guardianship. However, since a conservatorship involves handling the proposed ward’s money and assets, the Probate Court will not only appoint a Guardian Ad Litem but will also appoint an attorney to represent the Proposed Wards throughout the process and to make sure the conservatorship is in the best interests of the proposed ward. Also, since a conservatorship involves handling the proposed wards money and assets, the Probate Court will require the Conservator to get permission before any of the Wards money or assets can be used, and will require the Conservator to provide a detailed accounting of how the Wards assets are used.
In some cases, Guardianship or Conservatorship cannot be avoided because an individual has not had the capacity to plan ahead. Fortunately for many parents or grandparents who have children with special needs or disabilities, Guardianship and/or Conservatorship can be avoided by the parents and grandparents having a complete estate plan that includes a Trust and Powers of Attorney.
Attorney Kevin Tharpe has extensive experience dealing with guardianship and helping parents and grandparents who have children with special needs or disabilities plan and protect their families with Special Needs Trusts and other planning tools.
Our team is eager to help you with these issues. If you have any questions, we encourage you to contact us today.