When a Probate Court finds that an individual lacks the capacity to make or communicate significant responsible decisions with respect to certain rights, such as deciding where to live, whom to marry, or whether to undergo agree to medical procedures, the Court may remove those rights from that individual (known as the Ward) and name a trusted third party to make those decisions on the Ward’s behalf.
Similar to a guardianship, a Probate Court may appoint a conservator to act on behalf of an individual when that individual lacks the capacity to make or communicate significant responsible decisions with respect to financial matters.
To have a court appoint a guardian or conservator for an individual, two persons must file a petition with the Probate Court in which the person lives or is found. The Court will appoint an attorney for the proposed ward, and the Court will order an evaluation of a proposed ward. After the ward’s evaluation, the Court will hold a hearing at which the parties present evidence of the proposed ward’s capacity or lack of capacity. To see how the process unfolds, check out this diagrammatic graphic.
Whether a special needs child requires the protection of a guardian or conservator depends on the ability of that child. Someone with physical limitations or severe learning disabilities alone probably does not require these extreme protective measures. If you have a vulnerable child who is unable to function in the world without assistance, speak with the child’s teachers, medical providers, and an attorney to determine whether a guardianship or conservatorship is appropriate.
All too often, parents do not protected assets inherited by a child or earned by that child for the benefit of the child. Instead, these parents use the child’s money for the parents’ own pleasure. To preserve the assets owned by the minor for the minor’s use, states like Georgia have enacted laws requiring that a minor conservatorship be created for children who inherit or stand to receive a settlement of greater than $15,000. The Court oversees all payments made to and from the minor conservatorship. Once the minor reaches age 18, then the conservator turns over the balance of those assets to the now adult.
A guardianship or conservatorship will not force your loved one to take their psychiatric medications or to enter a psychiatric facility. It can, however, allow you to provide support to this family member in other ways. Learn more about when these legal protections are appropriate and when they are less effective.
You can contest (also called caveat) a petition for guardianship or conservatorship if you believe that the proposed ward has capacity or that the person who is nominated as guardian or conservator is not appropriate. However, these challenges can take an emotional and financial toll on all involved. Challenges to a guardianship and conservatorship follow court procedures and evidentiary rules, and you will be held to those rules. Please hire an attorney if you are considering challenging or defending a petition for guardianship or conservatorship.
In this mobile society, Wards may end up moving move between counties in Georgia and to and from other states many reasons. If you need to transfer a guardianship or conservatorship in or out of Georgia or to a county within Georgia, you will need an elder care attorney to obtain court’s approval for the move and to facilitate the transfer of the matter between the courts.
A typical guardianship proceeding without any challenges from third parties takes between 12-16 weeks to complete. Sometimes, the proposed ward has an issue that will result in the irreparable loss of assets or that will leave the proposed ward at risk for death, injury, or illness before a permanent petition can be heard. In these situations, it would be appropriate to file a petition to appoint an emergency guardian and / or emergency conservator to prevent these irreparable harms. The process to obtain an emergency guardian or conservator mirrors the process to obtain the permanent protections, though a hearing is held within 7 days of the filing of the petition. Obtaining an emergency guardian or conservator is difficult by design, and you should only consider filing an emergency petition in extreme situations where you can identify the harm that the proposed ward will face if the emergency petition is not granted.