GUARDIANSHIP OF ADULTS IN GEORGIA

In a free society, the right to make personal decisions—such as where to live, whom to marry, or how to spend money—is a key part of human dignity. Taking away any of an adult’s rights to make decisions is a serious matter and should be a last resort used only to the extent absolutely necessary.

Are there alternatives to guardianship?
Disability and age can sometimes make it appropriate for someone else to make decisions for others. In many cases, a person may be able to plan for incapacity in one of the following ways before considering guardianship:
~Durable power of attorney allows a competent individual to name another person, known as the attorney in fact, to have authority to make decisions in specified areas.
~Health care power of attorney grants authority specifically for health care decisions.
~A living will is a document specifying an individual's desires about medical procedures used to prolong life.
~A trust is a legal plan for placing property under the control of a trustee who manages the property for the benefit of another person, a beneficiary.
~Joint property allows two or more persons to own property together.

What are some other means to respond to an existing incapacity?
~A representative payeeship exists when the Veterans Administration or Social Security Administration appoints someone to handle benefits checks for a person determined incapable of doing so.
~Money management is a term covering a broad array of services designed to assist individuals who require assistance in managing their financial affairs.
~Finally, informal influence and advice may prove sufficient to protect a loved one.
Nevertheless, there are times that the best or only type of substituted decision-making for a person is by means of a guardianship.

What is a guardianship?
A guardianship is a legal relationship wherein a court appoints a person (a guardian) to make certain decisions for another person (a ward) proven to be incapacitated.
Under Georgia law, a guardianship shall be "designed to encourage the development of maximum self-reliance and independence in the ward and shall be ordered only to the extent necessitated by the person's actual and adaptive limitations." (O.C.G.A. 29-5-7(h)).
A guardian’s powers can be limited since persons found incapacitated are not incapacitated in the same manner or to the same degree. For example, just because a person does not possess the judgment to make contracts does not mean that a person does not have a good idea as to where he or she would like to live. A guardianship can be created on an emergency basis. A guardianship can be limited in duration (temporary) or permanent. Guardianships can be of the person or they can be of the property. The most restrictive guardianship is a guardianship of the person and property without any limits on the powers of the guardian.
A Guardianship of the Person can take away a person’s rights to decide to:
--marry;
--make contracts;
--consent to medical treatment;
--establish a residence;
--bring or defend an action in court.
A Guardianship of the Property can take away a person’s rights to decide to:
--bring and defend actions in court;
--make contracts;
--buy and sell property;
--enter into business and commercial transactions.
Although, by law, the court should remove as few rights as possible, all of the rights under each type of guardianship are removed if the court says nothing about limits.

Who can be a guardian?
Any person who is not a minor, is not incapacitated or does not have a substantial conflict of interest can be a guardian. The law lists preferences as to whom a court should appoint. A person chosen by an adult prior to incapacity has first preference. Thereafter, in descending order, preferences are a spouse, an adult child, and then the parent. The court may pass over someone with a preference, and if nobody is available, may appoint the director of the county Department of Family and Children Services as guardian of the person and the county guardian as guardian of the property.

What is the procedure for appointment of a guardian?
Guardianship is imposed by a formal legal procedure since a person’s right to make decisions should not be casually removed. Any interested person may file a petition by completing the form available from the county Probate Court. It is important to list limits on the guardianship in the petition. Friends and relatives of the person with an incapacity should bring the abilities of the person to the court’s attention so rights are not lost. There is a filing fee. The petition may be accompanied by a report determining incapacity from a physician or psychologist who has examined the person within ten days of filing the petition. An evaluation must be ordered by the court. If probable cause of incapacity exists, the judge will then schedule a hearing from which the judge will decide to grant the guardianship or not.
Once a guardianship is imposed, any interested person including the person under a guardianship can ask the court to modify or terminate the guardianship.

What are the duties and powers of the guardian?
The guardian of the person has the following duties toward the ward:
--to be reasonably accessible to and to maintain regular contact;
--to respect and maintain individual rights and dignity;
--to encourage the development of maximum self-reliance and independence;
--to arrange for support, care, well-being, training, and education in the least restrictive environment considering the needs and resources of the ward.
Finally, the guardian must report to the court within four months and annually thereafter;
The guardian of the property has the following duties:
--sell, lease, encumber or exchange property of the ward for payment of debts, support and education of the ward or the ward’s dependents;
-- make and file an inventory;
--file an annual report.
The guardian of the property is entitled to commissions for what he has received and paid out. Both guardians have power to make decisions for whatever rights to make decisions the court has removed from the ward.

What are the rights of the ward?
The ward retains rights even under the most sweeping guardianship:
--to communicate freely and privately with persons other than the guardian, except as ordered by the court;
--to vote and to make a will, subject to some limitations and exceptions;
--to have a guardian acting in the ward’s best interest;
--to have a guardian who is reasonably accessible;
--to ask the court to modify or terminate the guardianship thereby restoring rights.

Summary
When no other means is available, a guardianship can be a useful and necessary way to provide for substituted decision-making of an adult who is incapacitated. Georgia law recognizes the dignity of all human persons by authorizing the removal of decision-making abilities only to the extent absolutely necessary. Guardians, for their part, have special duties to the ward and to the court, although everyone in the process has a responsibility to ensure that the ward retains as many rights as possible.

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