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Guardianship and Conservatorship in Georgia

When caring for a loved one, you may be looking for a legal option that will allow you to properly tend to their needs and responsibilities when they are unable to meet them on their own. Obtaining guardianship and/or conservatorship can be a great way to protect your loved one. Although guardianships and conservatorships both serve to help someone live their life and make decisions, there are key differences between the two that need to be considered before deciding which is right for you and your vulnerable loved one. In this article, we will discuss these differences and the various aspects of both guardianships and conservatorships, including how to obtain one in the state of Georgia. Keep in mind this article is focused on the guardianship/conservatorship of an adult.

Difference Between Guardianship and Conservatorship

The difference between guardianship and conservatorship mainly lies in the type of decisions that need to be made on their behalf.

In a guardianship, an appointed guardian is responsible for providing their ward with personal protection concerning their day-to-day life. A guardian may determine where the person lives, make decisions regarding their health and medical care, and make legal decisions on their behalf. Overall, a guardian must ensure their safety and well-being.

In a conservatorship, an appointed conservator is responsible for taking care of their ward’s financial affairs. This may include paying bills, filing taxes, managing investments, budgeting, and making other financial decisions on their behalf. Unlike guardians, conservators do not have legal authority over the individual’s personal life. A conservator must ensure that their finances are protected from exploitation and mismanagement.

In many cases, a vulnerable individual may need both personal and financial assistance. It is not uncommon for a court to appoint both a guardian and a conservator. Depending on the circumstances, one person may fulfill both roles or different people will be assigned to each.

Who Needs a Guardianship and/or Conservatorship?

As previously discussed, an individual is appointed a guardian or conservator if they are unable to make sound personal or financial decisions on their own, respectively. There are a variety of reasons why someone may need these legal protections. Below are some common scenarios where obtaining a guardian or conservator may be necessary.

The elderly: Many seniors may experience a deterioration of their mental capacities due to aging. Conditions such as dementia and Alzheimer’s disease can impair their ability to reason and recall information, thus rendering them unable to make proper decisions. It is fairly common for guardianship and/or conservatorship to be obtained for an aging loved one due to such impairments.
Severe Illness: An individual dealing with a serious medical condition may need a guardian and/or conservator to assist them in their daily life and ensure their well-being. Health concerns ranging from a chronic medical condition to struggles with mental illness may cause one to require legal protection.

Disabilities: Individuals with a disability may need assistance with their affairs. Both physical and mental disabilities may result in one requiring a guardian or conservator, depending on the nature of the disability and the severity in which it impacts the person’s daily life.

Minors: A child under the age of 18 who is not legally emancipated will need a guardian and/or conservator if they do not have a natural guardian (biological or adoptive parent) to care for them. The minor’s parents may not be available for a variety of reasons, including death, abandonment, neglect, severe substance abuse, and health concerns that render them unable to provide proper care for the child. Guardianship and conservatorship of a minor will have different terms and responsibilities than those of an adult. The primary focus of this article is based on adult individuals; concern a skilled attorney for assistance if you are attempting to gain a guardian/conservator for a child.

Keep in mind that these are not the only scenarios in which one requires legal assistance with their personal or financial affairs. If you are unsure if your loved one could potentially be deemed in need of a guardian or conservator by a court, consult a skilled attorney for guidance and assistance with your circumstance.

Types of Guardianships and Conservatorships

When obtaining guardianship or conservatorship (also known as property guardianship) for your loved one, the court will set the length of the position and the scope of your responsibilities after a thorough review of your loved one’s circumstances, depending on the extent of their needs.

A guardianship can be either permanent or temporary depending on the presumed longevity of your loved one’s need for assistance. In a permanent guardianship, the guardian is appointed for an indefinite period. Temporary guardianships can range from only a few months to several years based on the circumstances.

In addition, there is also a special type of guardianship called emergency guardianship. These may be filed and granted if the court deems that there is an immediate and substantial risk of death, severe injury, illness, or disease unless an emergency guardian is appointed. In terms of a conservatorship, there must be an immediate and substantial risk of irreparable dissipation of property for one to be granted. An emergency guardianship will take less than a week after the hearing for an individual to be appointed.

If granted, a court will specify the powers a guardian or conservator will possess. If it is determined that the individual needs assistance on almost all aspects of their personal or financial affairs, total guardianship will be granted, giving the appointed individual all powers. In most other cases, the guardian/conservator’s powers will be limited in certain aspects.

How Can I Become a Guardian and/or Conservator?

To be appointed as a guardian and/or conservator, you must file a petition with the probate court in the county where your loved one currently resides. This petition must contain enough evidence to show that guardianship is essential for your individual’s health and safety. The court will thoroughly review your petition and accept it if they find probable cause for your request and believe a guardian/conservator is necessary. If they do not find probable cause, the petition will be dismissed. If accepted, the individual for whom guardianship is sought will then be formally notified of the petition and will have the opportunity to hire an attorney; if an attorney is not independently appointed, one will be appointed on their behalf. To determine if the proposed individual needs a guardian/conservator, the court will set up an evaluation conducted by a licensed psychologist, doctor, or social worker. After the evaluation, a hearing will be scheduled to finalize the petition and select the guardian/conservator. This process usually takes around a month to complete unless an emergency guardianship is petitioned.

Almost any individual can become a guardian/conservator in Georgia. However, there are a few exceptions. The following people cannot serve as a guardian or conservator:

Minors
Wards (someone who has a guardian)
Protected persons
Individuals with a conflict of interest with the proposed ward
Owners or employees of a caregiving facility or institution where the proposed ward receives care (e.g. a nursing home), unless they are related

The court will generally follow an order of preference to decide who will become the guardian/conservator among eligible individuals. The order is as follows:

The individual previously designated by the proposed ward to be their guardian/conservator
The proposed ward’s spouse OR the individual nominated by the proposed ward’s spouse
The proposed ward’s adult child OR the individual nominated by the proposed ward’s adult child
The proposed ward’s appointed guardian when they were a minor
A previously appointed guardian
A friend or relative
Any other willing and suitable individual, including volunteers
A county guardian, appointed by the county if no other suitable individual is found

Despite this order, the court is required to select the person who can best serve the interests of the individual in need, which may not always align with the order of preferences. If the court determines that a person, who is lower on the order than another potential candidate, would be more suitable as a guardian, they will act in the best interest of the proposed ward and select the “lower” individual, overriding the order of preferences.

Things to Consider

When looking to become the guardian and/or conservator of your loved one, you must be certain that this action is the best and most appropriate way to ensure their safety and well-being. A guardianship is an extremely severe measure that will dramatically affect the ward’s life. Although you wish to help your loved one, you are still technically restricting their rights by proceeding with this action. Because of this, petitions for guardianship/conservatorship are commonly contested by the proposed ward themselves, who are unhappy with their rights being potentially taken away. Even if the proposed ward is deemed in need of a guardian/conservator in court, disputes may occur between potential candidates. There are several alternatives to protecting your loved one that are less severe and intrusive, including but not limited to establishing a financial power of attorney, requesting a release of medical information, and the Georgia Medical Consent Law.

Before you start your process of obtaining guardianship/conservatorship, be sure to discuss your loved one’s specific circumstances and potential alternatives with a skilled attorney. Although you can file a petition for guardianship without an attorney, the legal process is complicated and stressful for an average person to handle. An attorney will help you determine if a guardianship and/or conservatorship is the right decision for your loved one and navigate you through the complex court proceedings.