How is Competency Determined by a Court?


Only a person deemed to be incompetent by a judge can have a guardian or conservator named over him/her. The Georgia code states, “The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” O.C.G.A. § 29-4-1(a). Fortunately, the courts must go through a detailed process in order to determine a person’s competency. Guardianship and conservatorship comes with risks and consequences, and taking away an adult’s rights and autonomy should not be taken lightly. The steps to determine competency starts with a petition to the probate court.

1. File a Petition—An interested person (could even be the proposed ward) files a Petition for the Appointment of a Guardian and/or Conservator for a Proposed Ward in the county where the proposed ward lives or is found (e.g., a proposed ward may live in Fulton County but is “found” in Dekalb County while being treated at Peachford Hospital). Two or more petitioners must sign the petition, and court filing fees must be paid.

2. Court Notifies Proposed Ward—The proposed ward is served papers notifying him/her that the petition has been filed.

3. Court Orders an Evaluation—In Georgia, a doctor, psychologist or licensed clinical social worker will be assigned by the court to complete an in-person evaluation of the proposed ward. The evaluator can review medical records and interview care providers and contacts of the proposed ward. The evaluator submits a copy of the evaluation to the probate judge.

4. Court Appoints a Guardian Ad-Litem—To protect the proposed ward, the probate judge assigned him/her a guardian ad-litem to meet with the proposed ward, investigate the situation and produce reports and recommendations to the court for the best interests of the proposed ward.

5. Judge Receives Recommendations—The judge will review the recommendations from the evaluator and from the guardian ad-litem.

6. Court Hearing is Held—The judge will hold a hearing where all evidence and recommendations will be reviewed. The proposed ward can be present (or can waive his/her right to be present). The judge will determine the proposed ward’s competency and then assign a guardian and/or conservator if needed. The judge will look for the least restrictive way to assist the person who is determined to be incapacitated. This means that if the person is determined to be partially incapacitated, then a guardian or conservator will be appointed only for limited purposes; or, if the person is determined to be totally incapacitated, then all of his or her legal rights will be taken away and instead handed over to the guardian.

The process for determining competency is designed to protect our rights to autonomy and freedoms. Taking away those rights through the guardianship process is treated as a serious decision and therefore this lengthy process has been established to ensure that only those who meet very strict criteria of incompetency become a ward. To learn more about this process and to ask questions about your situation, please call our office at (404) 843-0121 or email us at info@hurleyeclaw.com.