All About Legal Guardianship in Georgia: The Definitive Guide

What is a Legal Guardian?

Also known as "guardianship of the person and property," guardianship is a legal process in which the court (actually, a "judge" or "court") terminates an individual’s rights to manage his or her own affairs and appoints a permanent "legal guardian" to manage the person and/or property of the individual who is removed as guardian.
The purpose of legal guardianship in Georgia is to provide assistance to those who are unable to care for themselves or their affairs through no fault of their own. In Georgia , the terms "ward" and "incapacitated person" are used to refer to an individual who has had his or her rights removed and is now subject to the legal authority of another individual known as his or her guardian. Legal guardianship should not be confused with power of attorney, which is a contractual and voluntary delegation of authority to another person for a specific purpose, such as handling administrative matters for a military member overseas or managing property on behalf of an elderly person who does not wish to travel far. In legal guardianship, on the other hand, the person whose rights are relinquished is involuntarily placed under the authority of the court and of the guardian.

Georgia Guardianship Types

There are multiple types of guardianship in Georgia. The first type is a general guardianship. A general guardianship is appropriate for individuals who are considered to be totally incapacitated. A temporary guardian is someone who is appointed by the probate court during a period of time when a general guardian is needed but cannot be chosen because the incapacitated person is not able to make a choice due to temporary circumstances.
A limited guardianship is one that is required when a person is unable to make decisions about financial, health care, or other personal needs, for whatever reason. The probate court may appoint a limited guardian to take care of one or several of these areas. The probate court can even limit the powers of a guardian so that they involve only specific areas proscribed by the probate judge.
A testamentary guardian is one who is appointed to take care of the affairs of a minor who has lost their parents. A testamentary guardian is a person who does not actually have legal responsibilities until the testator (the parent who wrote the will) dies. A guardian of property is appointed by the court to oversee the possessions of a minor or an incapacitated person while removing the rights of that minor or person to legally possess their assets.
A plenary guardian is one that is appointed when the ward does not have any ability to make even the simplest decisions. A limited guardian is appointed when the ward’s ability to make some decisions remains but not all.

Who Can Be a Guardian

In Georgia, the law requires that a person seeking to become a guardian of a minor or incapacitated person must meet certain eligibility criteria. The court will consider these requirements when determining whether or not to appoint a guardian.
The following qualifications are generally necessary:
Age: A guardian must be at least 18 years old at the time the guardianship proceeding is filed.
Resident: A guardian must be a resident of Georgia or have a plan manager, who is a resident of Georgia. A plan manager is an individual, partnership, corporation, association, or government agency which has been approved by the court and is providing case management services to a relative of the ward.
Not Disqualified: A potential guardian can be disqualified if he or she has been convicted of a felony, or a crime that involved moral turpitude (such as stealing money from a person). Conversely, a potential guardian may be disqualified if he or she filed for personal bankruptcy within the prior five years.
No Conflict of Interest. The court takes a close look at the fiduciary duties of a potential guardian to determine whether or not to appoint him or her. If the potential guardian holds conflicting interests or has been found to be dishonest to the court, then the appointment will be denied.

How to Seek to Be a Guardian

Typically, this proceeding shall be brought in the county or location in which the incompetent person was domiciled or found. However, if the purported ward is a nonresident of Georgia, then the application may be brought in any county in which property is located. A petition for guardianship may be filed by an interested person which includes a nonresident who has priority to be appointed as guardian pursuant to OCGA §29-4-14, a spouse, a child, a person named as guardian in the last will and testament of the allegedly incompetent person, an individual or organization nominated by the allegedly incompetent person to serve as his or her guardian, or any other person showing good cause. The following documents must be filed in order for your petition for guardianship to be properly filed: the original petition for the appointment of a guardian for an incapacitated adult; a summons for each person served with a copy of the original petition; an affidavit stating the proposed guardian is eligible to serve as guardian for the incapacitated adult; an order appointing a guardian of the person of an incapacitated adult to be served on the incapacitated adult; and an oath and acceptance of office by proposed guardian. You must also file a certificate of service setting forth the name and address of every person served and the date and method of service. Finally, your petition for guardianship must be accompanied with a $200.00 filing fee. Once your petition is filed, a hearing date shall be set within 10 days of the filing of the petition. If the alleged incompetent person resides outside of the county, notice of the pendency of the action shall be provided in the county in which they reside. If the alleged incompetent person resides within the county, no notice shall be given and a guardian may be appointed on the 5th day after the date of service. In addition to the application and summons, process shall issue requiring The Judge of the probate court or the Clerk of the probate court to appoint three qualified and disinterested persons to serve as a jury of inquest to assess the mental and functional abilities of the alleged incompetent person. The jury shall possess the expertise necessary to perform the mental and functional assessments of all persons who are the subjects of petitions for guardianship. The inquest jury shall be composed of one member who is a licensed physician or psychologist, one member with experience in assisting the elderly, and one member who is familiar with the alleged incompetent person. Upon completing the mental and functional assessments of the alleged incompetent person and receiving the report from the jury, the court shall enter an appropriate order of appointment.

Guardian Rights and Obligations

The legal rights and responsibilities of guardians in Georgia can be wide-ranging and complex. However, there are a few key principles that all guardians should generally be familiar with.
Depending on the specifics of the guardianship and the circumstances surrounding it, the guardian may have the right to manage the ward’s finances, make decisions on behalf of the ward and communicate technically with the ward on their behalf in legal matters related to their estate or person. The guardian’s authority under the law and under the terms of the guardianship should be outlined in detail in the legal documents that created the guardianship.
While the specific scope of a guardian’s authority will vary from case to case, the law in Georgia does set forth several broad requirements regarding guardianship. For example , guardians are required to keep accurate records and accounts of all transactions made on behalf of the ward. Furthermore, guardians must file an Inventory and Appraisal of the decedent’s assets, along with an Annual Return designed to track the income and expenses of the estate. Guardians are also prohibited from engaging in self-dealing and mismanaging ward assets or fraudulently conveying them from the estate.
The consequences of failing to live up to the rights and responsibilities associated with the role of guardian can be severe, including the appointment of a new guardian, removal from their position as guardian and/or legal action against the guardian. Accordingly, guardians owe it to those for whom they provide assistance and themselves to understand the requirements of their role and live up to their obligations.

Challenges to Guardianship

Potential guardians should be aware of a number of challenges and considerations that present themselves in the context of guardianships and conservatorships. In terms of the financial considerations, litigation costs can be significant, requiring "up front" funds to be advanced for the benefit of a proposed ward prior to a court making a determination as to a person’s financial status. When there is no Third Party Administrator (TPA) who might agree to act as a guardian or conservator without charge, here are some things to keep in mind:
• If you are appointed as guardian and conservator on behalf of an incapacitated adult, you will likely not be paid for your services as a trustee until a bond has been filed with the probate court and your bond set by the court.
• For this reason, it is important that potential guardians and conservators have funds necessary to provide for the initial expenses of the guardianship/conservatorship.
• The lack of Third Party Administrator (TPA) can cause the court to appoint you as conservator for a period of time until some base level assets can be located (such as checking, savings, retirement, etc.) so that those funds can be utilized to fund the conservatorship.
• Many banks require five appointment documents before they will open an account for a conservatorship: (a) a certified copy of the appointment order; (b) the Letters of Conservatorship; (c) a Sample Signature Card; (d) the Federal Tax Identification number; and (e) the application/declaration of ability to act as custodian for a minor beneficiary.
• Some banks allow the conservator to obtain ATM cards to make bank deposits/payments but not debit cards.
• Additional fees may be imposed by the court at the time the conservatorship is terminated. Such fees may be construed as "court costs."
• Expect to incur attorney fees for obtaining Letters of Conservatorship, changing title for personal property and real estate, closing bank accounts, filing tax returns, selling real property, either selling or liquidating investments, completing a final accounting or Intermediate Inventory & Accounting and filing a Motion for Discharge.
While the foregoing challenges are concerns for many people, there are additional considerations that must be accounted for. In the State of Georgia, whom you believe is best suited to act as guardian and/or conservator for you can be legally challenged. To determine this, the following are questions to be considered:
• What family members would be the best person to appoint Guardian on your behalf?
• Which family members are best suited to serve as your Conservator?
• Would any such an appointment create conflict between family members?
• Who could most likely fulfill the role without a conflict of interest? If you have specifically selected persons as your Power of Attorney (POA), Health Care Agent, or Pre-need Guardian, those individuals may be best suited to serve as a court-appointed Guardian and/or Conservator.
• Would any such an appointment create a conflict amongst the appointed individuals if they were to serve in dual roles (i.e. if you appointed the same individuals to be both Guardians and Conservators, would that create a conflict for them?)? Sometimes the duties of a Guardian and a Conservator may conflict. This does not mean a person should not be appointed as both, but rather the court should be made aware of your wishes so as to avoid any potential conflict that may arise. An example of such a conflict would be: if a person appointed as a guardian has decision making authority while a person appointed as a conservator has sole authority over real property, such as a home. If the Guardian wishes to move the ward from their home and the Residence appraised value is $200,000, but the Conservator refuses to sell the Residence, the preneed Guardian concerns are "thwarted" (and vice versa). A different Appointee may need to be appointed as Conservator or Guardian if the court sees there may be a concern regarding the above scenario.

Termination of Guardianship

Termination of Guardianship
A Georgia guardianship can be terminated, if the circumstances that made the guardianship necessary no longer exist. Georgia law states as follows: After a hearing the judge may terminate the guardianship, but not within the first 12 months of the guardianship. The judge may also terminate a guardianship if the guardian dies or is not able or willing to continue to serve. The judge shall terminate a guardianship at the time the necessity for the guardianship ceases. So, if a person arrives at adult age, and the mental illness, physical injury, drug addiction, or developmental disability that lead to the need for a guardianship is no longer present, a guardianship should normally be terminated at this point. If the person gets married, the marriage may or may not terminate the guardianship. However, in Georgia, Men at the age of 18 and Women at the age of 17 are still considered minors. Therefore, a guardianship would need to be terminated if an adult Guardian does not want to take care of the individual anymore. If a minor age 14 or above is determined to have been sexually exploited, the guardianship is automatically terminated. The guardianship and conservatorship terminates upon the death of the ward. As such, probate courts make no distinction between ex parte and hearing matters for the termination of either unless a hearing is requested.

Guardianship FAQ

Below you will find some of the more common questions about Guardianship in Georgia:

• What happens when my appointed agent (under a Durable Power of Attorney) is unable to carry out his or her duties due to their own incapacity?
• In this case, your Durable Power of Attorney can and should include a replacement agent to step in if needed.
• What if I only need 5 days in the hospital? Do I need to worry about guardianship?
• Yes, the process of getting a guardian appointed takes about 60 to 90 days even in a case of emergency. If you are incapacitated for 5 days , there is no one authorized to make decisions for you during this time period without a guardianship.
• Can the person I appoint under a Durable Power of Attorney really make crazy financial decisions?
• Yes. That is why it is so important to consult with an attorney to consider all the options given your personal situation. There are many different forms of Durable Powers of Attorney and many other tools available, including but not limited to: Revocable Trusts, Advance Directives for Health Care, patient advocates under statutory law, the ability to designate agents under Georgia law (i.e. Ride to Live law), and others.
• Will I have to go to court for a guardianship disposition setting if I have no assets and the ward is living with me?
• Yes. Even if you have no assets and the ward resides with you, you will have to initiate a guardianship and go to court for a disposition hearing.