Thursday, June 1, 2017

Important Things You Should Know Before Deciding to Seek Guardianship or Conservatorship of an Adult

What exactly is a guardian, what is a conservator and when should you become the guardian or conservator of an adult?

Aunt Mary is 86 years old and has always been a little eccentric, but lately she’s been giving money to John, a much younger man that she calls her special friend.  Aunt Mary says that she knows her family doesn’t approve of her giving him money and gifts, but she has plenty of money, John has been her friend for many years, he has always helped her with her home and yard, and she doesn’t have anyone else she would rather spend her money on.  Does she need a guardian or conservator?

What is a guardian and conservator?

guardian is a person who is legally responsible for someone who is not able to manage his or her own affairs. Guardians and conservators are appointed by the judge of the probate court in the county in which the person in need of a guardian/conservator, called a ward, resides or can be found.

In Georgia, a guardian is the term that is used for the person responsible for managing affairs related to the health and safety of the ward, while a conservator is responsible for the financial affairs of the ward.

Guardianship and conservatorship are based on a legal doctrine known as parens patriae, which means that the state has a responsibility to protect the person and property of someone who does not have the ability to protect themselves or their property.  The state protects those who are unable to protect themselves by stepping in to appoint someone who can look after the person’s health, safety and property.  In that process, the ward loses many of their rights.  For a ward under guardianship, some of the rights they lose are: the right to marry, to contract, to consent to medical treatment, to establish a residence or dwelling place, or to change domicile.  For a ward under conservatorship, some of the rights they lose include:  the right to contract, and to buy, sell, or otherwise encumber property.

What is the process for appointing a guardian or conservator?

If Aunt Mary lives in Fulton County, Georgia, the judge of the Fulton County Probate Court is the official that will make the decision whether Aunt Mary is no longer able to make significant decisions about her health or safety or her finances.  The judge will also decide whom to appoint to make decisions for Aunt Mary.  Once a guardian or conservator is appointed, the Probate Court will require regular reports about the well-being of the person, and in the case of conservatorship, will require an annual budget for the benefit of the ward, as well as an annual accounting detailing where all the money was spent.

The process begins when a Petition is filed requesting that someone be appointed as the guardian or conservator.  In the Petition, the goal is to convince a judge that the potential ward lacks the capacity to make significant decisions about their health and safety, and/or lacks the capacity to make significant responsible decisions about their finances.  If the Petition is successful, the judge will appoint someone who is a physician, psychologist or licensed clinical social worker, to meet with the proposed ward to interview them to determine whether that professional thinks the proposed ward needs someone to manage their health and safety, and/or finances.  If the professional agrees, they report back to the judge and then a court hearing is scheduled.  In Court, the judge hears testimony from witnesses and possibly the proposed ward about why there is a need for the guardian or conservator.  This testimony is about the physical and mental condition of the person, as well as things they have done that show they cannot make decisions for themselves.  At the end of the testimony, the judge will make a decision and issue an order either appointing someone or dismissing the petition.

Does Aunt Mary need a guardian or conservator?

In Aunt Mary’s case, she says that she has decided to give her money to John because he has helped her out on many occasions.  She has stated that she has known him for years, he helped her around the house and yard, and that she has plenty of money and no one else she wants to give the money to.  That may not be what her family would like, but she has been able to say why she made this decision and what the outcome of this decision will be.  Adults are able to make decisions that may seem foolish, as long as they are able to understand and reason why they make those decisions.  The analysis would be different if Aunt Mary has been diagnosed with dementia and can’t tell you why she gave her money to John, can’t even remember that she gave her money to John, and no longer knows how much money she has or where she keeps the money.

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