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Guardianships & Conservatorships
Providing Protection for Adults with Intellectual Disabilities
As competent adults, we have the legal right to make both good and bad decisions every day. Unfortunately, some individuals lack the ability to process the information needed to make their own decisions. Their intellectual disabilities may be genetic (e.g., a child born with autism) or they may be the result of a traumatic brain injury, illness, or the development of adult-onset dementia. For these individuals, the law provides protection in the form of guardianships and conservatorships.
Guardianship and conservatorship are measures of last resort, used only when less restrictive options have failed or no longer exist. To be successful in proving the need for a guardianship or conservatorship, the petitioner must show the court “clear and convincing” evidence that the proposed ward lacks the ability to make significant responsible decisions with respect to that individual’s health and safety (guardianship) and/or the management of the individual’s financial affairs (conservatorship). If the burden of proof is met, the Probate Court uses its authority to remove certain rights belonging to the ward. The Court then gives a relative, friend, or other designated third party the ability to exercise those rights on behalf of the ward.
What is Guardianship?
Guardianship is an inherently adversarial process in which someone petitions a Probate Court to remove the personal rights held by an individual, known as a proposed ward, to make their own decisions regarding such things as where to live, who to marry, or the ability to consent to medical procedures.
What is Conservatorship?
By contrast, Conservatorship involves the removal of the rights to conduct business and commercial transactions.
Guardianship and Conservatorship (collectively, guardianships) are legal processes by which the Probate Court removes fundamental rights from individuals who lack the cognitive ability to exercise those rights.
Guardianship & Conservatorship Services Provided by Weinberg Elder Law Include:
WEL can help individuals obtain a guardianship or conservatorship of an individual requiring court protection as well as counsel families as to the varies types of guardianships and conservatorships that are available. WEL manages all aspects of the guardianship and conservatorship, from the inception to the final hearing.
While most guardianship matters are simple and challenged only by the proposed ward (who often insists that he does not need any help), some matters are hotly contested. In these cases, someone challenges the petitioner as to who should serve as the guardian or conservator or whether a protective proceeding is even needed. The objector may allege, for example, that the proposed ward is being abused or is being unduly influenced by other family members. These litigation matters become emotionally and financially draining for the individuals trying to care for the proposed ward. WEL represents individuals in these contested matters to provide the best possible outcome while being sensitive to our client’s financial resources.
Obtaining the guardianship and conservatorship is only part of the proverbial battle. Guardians and conservators sometimes face challenges in carrying out their responsibilities or need help with filing administrative petitions or annual reports with the Probate Court. WEL can help guardians and conservators deal with financial institutions or other entities that refuse to recognize the courts’ orders. WEL can also advise on the limits of the guardianship or conservatorship, when petitions need to be filed, and draft, review and file the required annual reports with the Court.
WEL can aid in proper planning that will allow the ward to access public benefits for housing and other medical and community-based services while stretching any savings the individuals may have to provide for their other needs. All VA planning is done in the context of how eligibility for certain VA benefits may impact eligibility for Nursing Home Medicaid or Medicaid Waiver Programs.
For wards under age 65 who are otherwise eligible for public benefits, WEL can draft first-party special needs trusts that will allow an individual to retain or obtain eligibility for public benefits, including Medicaid and Supplemental Security Income. These individuals may already have resources that disqualify them from receiving public benefits, or they may anticipate the receipt of these resources through, for example, an inheritance or lawsuit settlement.
Guardianship is not always the best solution for an individual who has a mental illness or a problem with addiction. A guardianship can help provide protection for the individual, but it ultimately cannot force an individual to receive the treatment that individual needs. WEL counsels families and friends about the options available to them, discusses the scenarios in which a guardianship is helpful, and advocates as necessary to help that individual receive appropriate care through the mental health system.
Sometimes minors receive significant income through an inheritance, a lawsuit, or even through employment, such as employment through the entertainment industry. Natural guardians (i.e., the parents of the minor) may need to establish a conservatorship of the minor to approve a settlement of litigation and/or to hold funds for the minor in excess of $15,000. WEL can help file the minor conservatorship, obtain court approval of the settlement if required, and provide guidance as to the boundaries of the minor conservatorship.
In our mobile society, it is not uncommon for a ward to move to a different state, and a guardianship and conservatorship will follow the ward irrespective of where the ward moves. If a ward moves to Georgia from another state or from another state to Georgia, WEL can petition the Georgia Probate Court to transfer of the guardianship or conservatorship to Georgia or the new state. WEL can also help with the registration of a non-Georgia guardianship or conservatorship in Georgia.
