Guardianship & Conservatorship

A guardianship is a court proceeding designed to protect an individual who is unable to make his or her decisions regarding personal matters. A conservatorship is similar, often done together with a guardianship, but it relates to financial decision-making. In some States, like Georgia, the terms are used separately to designate differing responsibility. Other other States, the person (or persons) performing each jobs may be called a guardian or conservator. For example, prior to Georgia’s revision to its guardianship code, both were guardians, but one was guardian of person and the other was guardian of property.

The primary purpose of a guardianship or conservatorship is to protect a class of citizens who are incapable of fully protecting themselves. Guardianships and conservatorships are court proceedings which, when approved, implement the concept of parens patriae. They include “front end” procedures (associated with due process when the petition is considered) and “back end” procedures (associated with guardian oversight). The result is the ward’s legal authority (or some portion of it) is taken away and given to the guardian or conservator. For this reason, guardianship proceedings are considered adversarial. The lawyer representing the person petitioning to become guardian cannot represent the ward.

“Conservatorship proceedings provide a forum for determining whether a person’s ability to remain autonomous has become impaired. Even though these proceedings are intended to promote the best interests of the vulnerable elderly, they carry with them the real possibility of displacing the elderly person’s ability to make even the most basic decisions for themselves and to live their lives unfettered by the control of others. Persons who are the subject of a conservatorship face a substantial loss of freedom, that resembles the loss of freedom following a criminal conviction.

Usually, a guardianship and conservatorship are unnecessary when advance planning is done and there is a power of attorney and an advance directive for health care. When those documents exist, a guardianship or conservatorship becomes necessary only when one of the following situations: (1) the named fiduciary dies or can no longer serve and there is no named back-up who can serve; (2) the fiduciary abuses his or her authority; (3) the individual needing protection neglects himself or herself and refuses to cooperate; (4) there is family in-fighting; or (5) there is outside abuse requiring assistance from the courts.

In Georgia, a guardianship or conservatorship usually begins when an interested party files a Petition on Form 12 of the Georgia Probate Court Standard Forms. The Petition should be filed in the county where the proposed ward is domiciled, where he or she is found, or where jurisdiction is proper under the Uniform Adult Guardianship and Conservatorship Proceedings Jurisdiction Act. O.C.G.A. § 29-4-10(a). The Petition must be verified, and must be signed either by two Petitioners, or by one Petitioner with an attached affidavit from a physician, psychologist or licensed clinical social worker who examined the proposed ward within 15 days prior to the date the Petition is filed. Consistent with O.C.G.A. § 29-4-10(b), the petition for appointment of a guardian shall set forth:

(1) A statement of the facts upon which the court’s jurisdiction is based;
(2) The name, address, and county of domicile of the proposed ward, if known;
(3) The name, address, and county of domicile of the petitioner or petitioners and the petitioner’s relationship to the proposed ward, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as guardian and that person’s relationship to the proposed ward, if any;
(4) A statement of the reasons the guardianship is sought, including the facts which support the claim of the need for a guardian;
(5) Any foreseeable limitations on the guardianship;
(6) Whether, to the petitioner’s knowledge, there exists any living will, durable power of attorney for health care, advance directive for health care, order relating to cardiopulmonary resuscitation, or other instrument that deals with the management of the person of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;
(7) The names and addresses of the following whose whereabouts are known:

(A) The spouse of the proposed ward; and
(B) All children of the proposed ward; or
(C) If there are no adult children, then at least two adults in the following order of priority:

(i) Lineal descendants of the proposed ward;
(ii) Parents and siblings of the proposed ward; and
(iii) Friends of the proposed ward;

(8) If known, the name and address of any individual nominated to serve as guardian by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-4-3;
(9) If known, the name and address of any individual nominated to serve as guardian by the proposed ward’s spouse, adult child, or parent, as described in paragraph (2), (3), or (4) of subsection (b) of Code Section 29-4-3;
(10) Whether any nominated guardian has consented or will consent to serve as guardian;
(11) If known, whether any nominated guardian is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the proposed ward is receiving care, and, if so, whether the nominated guardian is related to the proposed ward by blood, marriage, or adoption;
(12) Whether an emergency guardian has been appointed for the proposed ward or a petition for the appointment of an emergency guardian has been filed or is being filed;
(13) If known, a disclosure of any ownership or other financial interest that would cause any nominated guardian to have a conflict of interest with the proposed ward;
(14) A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are requested by the guardian and a statement of the circumstances that would justify the granting of additional powers;
(15) Whether a guardian or conservator has been appointed in another state or whether a petition for the appointment of a guardian or conservator is pending in another state;
(16) That to petitioner’s knowledge, there has been no petition for guardianship denied or dismissed within two years by any court of this state or, if so, that there has been a significant change in the condition or circumstances of the individual, as shown by the accompanying affidavits or evaluation;
(17) Any state in which the proposed ward was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition or ending within the six months prior to the filing of the petition; and
(18) The reason for any omission in the petition for appointment of a guardian in the event full particulars are lacking.

Assuming the Petition meets the requirements of O.C.G.A. § 29-4-10(b), and assuming the Probate Judge agrees there is probable cause to move forward, O.C.G.A. § 29-4-11(a), the investigation which follows focuses on the ward’s decision-making capacity. Ultimately, the court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. O.C.G.A. § 29-4-1(a). There is no presumption that anyone needs a guardian, O.C.G.A. § 29-4-1(e), and all guardianships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate. O.C.G.A. § 29-4-1(f).

The next step after a determination that probable cause exists is to notify the proposed ward of the proceeding. O.C.G.A. § 29-4-11(c)(1). Notice must be personally served; service by mail is insufficient. The notice must inform the proposed ward of the date and time of a court ordered evaluation and must inform the proposed ward that if he or she does not retain counsel within two days, an attorney will be appointed for the proposed ward.

The court must appoint a physician, psychologist or licensed clinical social worker (other than one supplying an affidavit attached to the Petition) to evaluate the proposed ward. O.C.G.A. § 29-4-11(d)(1). During the evaluation, the examiner must attempt to explain the purpose of the evaluation; the proposed ward may remain silent. O.C.G.A. § 29-4-11(d)(2). The evaluation must be conducted, not sooner than 5 days after notice is served on the ward, and with as little interference as possible with the proposed ward’s activities. O.C.G.A. § 29-4-11(d)(3). If the proposed ward fails to appear for the evaluation, the court may order that he or she be taken to an evaluation, which must be conducted during normal business hours; the proposed ward may not be detained overnight. O.C.G.A. § 29-4-11(d)(3). The proposed ward’s legal counsel may attend the evaluation, but may not participate. O.C.G.A. § 29-4-11(d)(2). Any statement made by the proposed ward during the evaluation is privileged and is not admissible as evidence in any proceeding other than the guardianship or conservatorship proceeding. O.C.G.A. § 29-4-11(d)(2). The report, which must be signed under oath by the examiner and returned to the court within seven (7) days following the evaluation, O.C.G.A. § 29-4-11(d)(5), may include, but not be limited to:

(A) A self-report from the proposed ward, if possible;
(B) Questions and observations of the proposed ward to assess the functional abilities of the proposed ward;
(C) A review of the records for the proposed ward including, but not limited to, medical records, medication charts, and other available records;
(D) An assessment of cultural factors and language barriers that may impact the proposed ward’s abilities and living environment; and
(E) All other factors the evaluator determines to be appropriate to the evaluation.

See O.C.G.A. § 29-4-11(d)(3). The filed report must be served on the proposed ward, his or her legal counsel and on the guardian ad litem (if any). O.C.G.A. § 29-4-11(d)(4). Although not expressly stated, presumably the examiners report must also be served on the Petitioner since Petitioner’s legal counsel may file a written response to the evaluation at any time not later than commencement of te hearing. O.C.G.A. § 29-4-11(d)(6).

After the evaluation is filed, the court must again review the file for probable cause. O.C.G.A. § 29-4-12. If none exist, the Petition shall be dismissed. If there is probable cause, then the court must schedule a hearing and give notice to the parties. O.C.G.A. § 29-4-12(c). The hearing date may not be less than ten (10) days after the notice is mailed. Regarding the hearing, O.C.G.A. § 29-4-12(d) provides:

(1) The hearing shall be held in a courtroom or, for good cause shown, at such other place as the court may choose. At the request of the proposed ward or the proposed ward’s legal counsel and for good cause shown, the court may exercise its discretion to exclude the public from the hearing and the record shall reflect the court’s action. The proposed ward or the proposed ward’s legal counsel may waive the appearance of the proposed ward at the hearing.
(2) The hearing shall be recorded by either a certified court reporter or a sound-recording device. The recording shall be retained for not less than 45 days from the date of the entry of the order described in Code Section 29-4-13.
(3) The court shall apply the rules of evidence applicable in civil cases.
(4) The court shall utilize the criteria in O.C.G.A. § 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing. In addition, the court may consider the evaluation report and any response filed by the proposed ward. The burden of proof shall be upon the petitioner.
(5) Upon determination of the need for a guardianship, the court shall determine the powers, if any, which are to be retained by the proposed ward, in accordance with the provisions of Code Section 29-4-21 and whether any additional powers are to be granted to the guardian, pursuant to the provisions of subsection (b) of Code Section 29-4-23.
(6) If the court determines that a guardianship is necessary and the proposed ward is present, the proposed ward may suggest any individual as guardian. The court shall select as guardian the individual who will serve the best interest of the ward.
(7) In any procedure under this chapter in which the judge of the court is unable to hear a case within the time required for such hearing, the judge shall appoint an individual to hear the case and exercise all the jurisdiction of the court in the case. Any individual appointed shall be a member of the State Bar of Georgia who is qualified to serve as the probate judge in that county and who is, in the opinion of the appointing judge, qualified for the duties by training and experience. The appointment may be made on a case-by-case basis or by making a standing appointment of one or more individuals. Any individual who receives a standing appointment shall serve at the pleasure of the judge who makes the appointment or the judge’s successor in office. The compensation of an individual appointed shall be as agreed upon by the judge who makes the appointment and the individual appointed, with the approval of the governing authority of the county for which the individual is appointed, and shall be paid from county funds. All fees collected for the service of the appointed individual shall be paid into the general funds of the county.

If the Court appoints a guardian, then O.C.G.A. § 29-4-13(a) requires that the court issue an order that sets forth the findings of fact and conclusions of law that support the grant or denial of the petition. An order granting guardianship shall specify:

(1) The name of the guardian and the basis for the selection;
(2) Any powers retained by the ward pursuant to Code Section 29-4-21;
(3) The limitations on the guardianship;
(4) A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are granted to the guardian;
(5) If only a guardian is appointed or if the guardian and the conservator appointed are not the same person, the reasonable sums of property to be provided the guardian to provide adequately for the ward’s support, care, education, health, and welfare, subject to modification by subsequent order of the court;
(6) The type and frequency of any physical, mental, and social evaluations of the ward’s condition which the court may require to supplement the reports submitted pursuant to paragraph (9) of subsection (a) of Code Section 29-4-22; and
(7) Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.

Unless the order specifies that one or more of the following powers are to be retained by the ward, O.C.G.A. § 29-4-21 provides that the appointment of a guardian shall remove from the ward the power to:

(1) Contract marriage;
(2) Make, modify, or terminate other contracts;
(3) Consent to medical treatment;
(4) Establish a residence or dwelling place;
(5) Change domicile;
(6) Revoke a revocable trust established by the ward; and
(7) Bring or defend any action at law or equity, except an action relating to the guardianship.

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