Guardianships of Adults

The personal right to make decisions about living one's own life is taken for granted by most adults. Yet, inevitably, illness or disability may render some adults incapacitated during the course of their lives and thereby prevent them from making responsible decisions concerning their life or property. Guardianship is one means of substituting the judgment of another person for that of an incapacitated individual. Guardianship is a legal relationship created by a court when the Judge appoints someone (a Guardian) to make decisions for another person who has been proven to be incapacitated (a Ward).

Types of Guardianship
There are two main types of guardianship - of the person and of the property. A guardianship of the person may remove from the incapacitated person the power to contract marriage, to make other contracts, to consent to medical treatment, to establish a residence, and to bring or defend an action in court. What was formerly called a guardianship of the property in Georgia is now termed a "conservatorship." It removes from the ward the power to bring or defend actions in court, to make contracts, to buy and sell property, and to manage their business and financial affairs, unless any of those powers are specifically reserved to the ward by the court. The court may appoint one person as guardian of the person and another as conservator, or the same person may serve in both capacities.

Within these two main categories, a guardianship or conservatorship can be either permanent or temporary (called "limited in duration"). Also, a guardianship can be total (granting all powers) or the guardian's powers may be limited, with the ward retaining some powers which could have been removed. Georgia law is progressive in this regard, recognizing that not all incapacitated persons are incapacitated in the same manner and to the same degree. The law specifically requires that guardianships shall be "designed to encourage the development of maximum self-reliance and independence of the ward and shall be ordered only to the extent necessitated by the person's actual and adaptive limitations." O.C.G.A. 29-5-7(h). For example, just because a person does not possess the judgment to make contracts does not necessarily mean that he or she cannot decide where to live. Finally, a guardianship can be created on an emergency basis if there is an immediate, clear and substantial risk of death, serious injury, illness or disease, or irreparable waste or dissipation of the person's assets.

Who Can Be A Guardian
Any person who is not a minor, is not incapacitated, and does not have a substantial conflict of interest can be a guardian. The law lists preferences, starting with a person chosen by the ward in writing prior to incapacitation. A court may pass over a preferred person for good cause. If a suitable person is not available, a county guardian, a public guardian, or the Director of the Division of Aging Services of the Department of Human Resources may be appointed.

Procedure for Appointment of a Guardian
Any person knowledgeable about and interested in the Ward's welfare may institute guardianship proceedings. (The person petitioning for the appointment of a guardian or conservator must use the applicable Georgia Probate Court Standard Form (GPCSF), which is available at the courthouse or online at the official statewide Probate Court web site, www.gaprobate.org.) If the facts stated in the petition sufficiently support the Petitioner's claim that the proposed Ward is incapacitated, the Court orders an evaluation by a doctor or other medical professional, as appropriate. The petition and the order must be served personally on the proposed Ward. Unless the Court is notified within two days that the Ward has an attorney, the Court appoints one. If the evaluation report and the pleadings together establish probable cause of incapacity, the Court holds a hearing to determine whether a guardianship should be ordered.

The fees for any guardianship proceeding must be paid upon filing the petition with the Probate Court. The Probate Court will accept cash, money orders, or personal checks made payable to "Probate Court."

The filing fees payable to the Probate Court are:

$171.50 Filing fee

$2.00 Per page, Recording fee

(varies) Reasonable Fee plus actual expenses for Court appointed medical professional

(varies) Reasonable Fee for Court appointed attorney for the proposed Ward. The attorney may be awarded additional fees if extra work is required.

A separate check will be required for $25.00, payable to the Sheriff of Clarke County, for personal service on the proposed Ward.

More on the Rights and Duties of Wards and Guardians.

This information was originally prepared as a public service by The Hon. William J. Self, II, Judge of the Probate Court of Bibb County, Georgia, and Ms. Dianne Brannen, Ombudsman for the Probate Court of Bibb County, Georgia. Judge Self received his B.A. and J.D. degrees from the University of Georgia. Ms. Brannen received a B.M. degree from Wesleyan College, an M.B.A. degree from California State University, Los Angeles, and a J.D. degree from Mercer University. Minor revisions have been made by The Hon. Susan P. Tate, Judge of the Probate Court of Athens-Clarke County, Georgia. Judge Tate received her B.A. and J.D. degrees from the University of Georgia.

$171.50		Filing fee
$2.00		Per page, Recording fee
(varies)		Reasonable Fee plus actual expenses for Court appointed medical professional
(varies)		Reasonable Fee for Court appointed attorney for the proposed Ward. The attorney may be awarded additional fees if extra work is required.