Is a guardianship/conservatorship necessary?
A guardianship is sometimes necessary when an individual has lost sufficient functional capacity to make or communicate significant, responsible decisions about their health and safety. The may exhibit behaviors such as: not eating properly, not taking prescription medications, hoarding, and poor personal hygiene. All the while resisting offers of guidance and assistance from friends, family and loved ones. When these behaviors become out of control, someone may have to step up to the plate to take control. The process of going into the county Probate court and petitioning to protect an individual at risk is called Guardianship. The relationship between the Guardian and the ward is much like that between a parent and a child. The decision making power removed from a person should be as limited as possible and every effort should be made to observe the adult’s individual rights and dignity.
A conservatorship may be necessary when an individual can no longer make financial transactions or decisions for himself. They may have lost functional capacity and can no longer make financial decisions, is making bad financial choices due to a form of dementia or perhaps is being financially exploited by another individual or family member. The process of going into the county Probate court and petitioning to protect the resources of an individual is called Conservatorship.
The attorneys of Hurley Elder Care Law, have a wealth of experience helping families in this painful and emotional time. Our Certified Elder Law Attorneys have successfully argued cases in every metro Atlanta Probate court and can assist you and your loved ones as you navigate this complex and stressful process.
Procedure for the appointment of a
Filing for Guardianship/Conservatorship
Any interested person may file a petition in county Probate Court. The petition must be signed by either two interested parties or one interested party and one medical professional.
The law does not require that you have an attorney to file a petition in Probate Court. However, Guardianship is a legal proceeding that requires a hearing where evidence is presented, testimony is taken and a lawyer will be appointed to represent the Proposed Ward. If you are not represented by an attorney, you will be expected to present the evidence in the appropriate manner.
In the State of Georgia, helpful information can be found at gaprobate.org
Procedure for the appointment of a Guardianship/Conservatorship
A petition would be filed in the Probate Court in the county where the Proposed Ward currently lives (or is currently located). There is a filing fee, which varies by county. The petition is reviewed by the Probate Court judge and is either accepted or dismissed. If the petition is accepted, the following will occur:
• The court sends notices to the Proposed Ward of what has happened and provides copies of the petition.
• The Proposed Ward is informed that he must submit to an evaluation.
• The Proposed Ward is informed that he has the right to his own a attorney and that one will be provided to him within two days, if he does not hire his own
• The court will decide if it needs to appoint a guardian ad litem (an officer of
the court whose job it is to review the circumstances of the petition and make recommendations to the court for the best interest of the Proposed Ward).
If the evaluator agrees with the petition, a hearing will be scheduled where the judge will decide whether or not to grant the Guardianship or Conservatorship (or both). The process takes an average of 90 days and varies by county
Responsibilities of the Guardian/Conservator
Anyone can serve as a Guardian with the exceptions of minors and persons who have a conflict of interest with the adult. There is an order of preference that the court lists when appointing a Guardian or Conservator. A person chosen by the adult has first preference. There after, the preferences are: spouse, an adult child and then the parent.
The basic power of a Guardian is to make decisions regarding the Ward’s support, care, education, health and welfare. The basic power of a Conservator is to receive, collect and make decisions about the property of the Ward. Of course, the Guardian and Conservator, to the extent possible, should encourage the Ward to participate in decision making.
If the facts indicate that an individual is in immediate and substantial risk of death or serious physical injury, illness or disease, the court may appoint an emergency Guardian/Conservator. This is a temporary appointment. This person will serve until a full hearing on the Guardianship/Conservatorship takes place, or 60 days, whichever is first.
Is a loved one at risk either physically or financially?
Contact us at 404.843.0121, or fill out the form below, to help determine if a Guardianship/Conservatorship is appropriate