Understanding Guardianships: Who is appointed as guardian?

Once a judge has deemed a ward to be incompetent and has agreed that a guardianship should be in place, the judge has to appoint an appropriate guardian. There are some restrictions on who can be appointed as a guardian in Georgia. Only individuals (not organizations) can be guardians (unless the Guardian is the Georgia Department of Human Services), and the potential guardian must be an adult, not be a ward, and not be a protected person. To be eligible to be named a guardian, an individual must have no conflict of interest with the ward (unless the court approves it) and must not be an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the adult receives care (unless the adult is related by blood, marriage or adoption). Once the judge has cleared the potential guardians of these restrictions, he/she will follow the list of Preferences in the Order in which the law selects those to become the guardian for a ward. This list of preferences goes as follows:

An individual/person previously nominated in writing by the Proposed Ward (such as in the Georgia Advance Directive)
A spouse of the Proposed Ward or an individual/person nominated by the spouse
An adult child or an individual/person nominated by the adult child
A parent or someone nominated by a parent
A guardian appointed while the Proposed Ward was a minor
A guardian appointed previously in Georgia or appointed in another state
A friend, relative or any other individual
Any other person, including a volunteer to the court found suitable and appropriate who is willing to accept the appointment
The County Guardian

The judge does consult the ward’s Advance Directive for any indication of whom the ward wished to be the guardian. This is another reason to fully complete and sign a Georgia Advance Directive (and to keep it updated). You can download a copy of the Georgia Advance Directive here: https://hurleyeclaw.com/wp-content/uploads/2017/02/georgia-advance-directive-for-health-care-2016.pdf

Since the judge is required to appoint a person who will best serve the interests of the ward, there are times when the judge may disregard the list of preferences of the order and appoint someone with a lower preference because it is in the best interest of the ward. When individuals are fighting over who should be the ward’s guardian, an experienced elder law attorney can provide representation to help win guardianships. If you need personalized legal advice about guardianships in Georgia, please call our office at (404) 843-0121 or email us at info@hurleyeclaw.com.