Thursday, March 31, 2022

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

In Georgia, a guardian is the term 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. Ward is the term used for someone who has a guardian or conservator. The relationship of the guardian or conservator to the ward is similar to that of a parent to a minor child.

The judge of the probate court in the county in which the ward resides or can be found appoints guardians and conservators.

 When a guardian or conservator is appointed, the ward loses many rights.  For a ward under guardianship, some of those rights 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 rights to contract, and to buy, sell, or otherwise encumber property.

When is a guardian or conservator necessary?

If a person has not appointed an agent under financial power of attorney, and is or becomes unable to make significant decisions about His or her finances, no one has the legal authority to act as a substitute financial decision-maker, including the legal authority to access financial accounts or discuss financial matters with banks or other financial institutions. 

Similarly, if a person cannot make significant decisions about her healthcare and/or safety and has not appointed a healthcare proxy in a document such as an advance directive for healthcare, there may be no one with the authority to make healthcare decisions for the person.  Even if there is an advance directive in place, the healthcare agent does not have the ability to force someone to live somewhere or take medical treatment if they do not want to.  So, For example, if someone with dementia refuses to leave an unsafe living situation, there is no way to make the person relocate to a safe place unless there is a guardianship in place. 

How do I get guardianship and/or conservatorship?

A Guardian/conservator is a court-appointed position. A person seeking guardianship or conservatorship files a Petition in the County Probate Court requesting to be appointed to serve as the guardian/conservator of a person that allegedly lacks the ability to make significant decisions about healthcare and safety and/or finances.  the goal of the petition is to convince a judge that based on the allegations in the petition, the potential ward lacks the ability to make or communicate significant decisions about healthcare or safety and/or finances and is in need of a guardian and/or conservator.  The petition should also allege that the petitioner is the appropriate person to be the guardian and/or conservator.  The guardian and conservator can be the same person, but that is not necessary.  If the Petition meets the requirements, the judge will appoint a physician, psychologist or licensed clinical social worker, to meet with the proposed ward to evaluate them to determine whether that professional thinks the proposed ward needs someone to manage their health and safety, and/or finances.  The Evaluator reports back to the judge with an opinion about whether there is a need for guardianship and/or conservatorship, and then a court hearing is scheduled.  In Court, the judge hears testimony from witnesses, and possibly the proposed ward, about whether the Proposed Ward is able to make significant decisions about their healthcare and/or finances. At the end of the testimony, the judge will make a decision and issue an order either appointing a guardian and/or conservator or dismissing the petition.

For guardianship and/or conservatorship, I recommend you seek representation from an attorney experienced in guardianship and conservatorship in Georgia.  The Probate courts are not allowed to give legal advice, and the process can be frustrating if you do not know how to work in the court system.

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