When an adult over the age of 18 is not capable of making sound decisions regarding their life, safety, health, or property, they may be placed under guardianship by the court. While under guardianship, the person being protected (called the ward) has certain rights removed, and another person (the guardian or conservator – more on that later) is appointed to take responsibility for ensuring that the ward’s property, health, and living conditions are all protected and that the ward’s assets are being effectively used for the ward’s upkeep.
In Georgia, the probate court in each county is responsible for placing adults into guardianship, and then for restoring their rights once they’ve proven themselves again capable of managing their own affairs.
There are two main types of guardianship, and each can be established on either a temporary emergency basis or on a longer-term basis.
The two types of guardianship, at one time, were called “guardianship of the person” and “guardianship of the property.” Today, those terms have been replaced by simply “guardianship” and “conservatorship,” respectively. In many cases, the court will appoint one individual to serve as both guardian and conservator for a ward.
There are considerable differences between the two roles and how their guardianship affects the lives of their wards.
Guardianship (Guardianship of the person)
When a person is no longer competent to make their own decisions regarding their life or lifestyle, the court will appoint a guardian to oversee the ward and protect the ward’s best interests. When placed under guardianship, the ward may lose their right to:
- Marry or divorce. The abuse of elderly and mentally disabled individuals by opportunistic bad actors obtaining questionable marriages is a significant concern and is the reason for this removal of rights.
- Enter into contracts. While there’s no requirement that both parties to a contract understand the contract, removal of the ward’s right to enter contracts prevents them from entering into potentially harmful agreements because they lack the capacity to understand the terms.
- Consent to medical treatment. This right is often specified in guardianships as the only right the ward surrenders on entering guardianship. Due to the incredibly sensitive and impactful nature of medical decisions, courts tend to be more willing to place those decisions in the hands of a guardian.
- Establish a residence. When a ward is placed under guardianship, they may not agree with the court’s decision and attempt to escape the situation, placing themselves in more danger. People under guardianship cannot relocate, sign leases, buy property, or otherwise distance themselves from their guardian.
While these rights are often removed from wards under guardianship en bloc, not every guardianship is built the same. When the court assesses a ward’s competence, they will consider all aspects of the ward’s life and attempt to remove as few rights from them as possible.
Once under guardianship, the ward’s safety and upkeep are the responsibility of their guardian. Typically, the court extends fairly wide latitude to the guardian in terms of what actions they can take to keep their ward safe, but all actions taken on behalf of the ward must be made in their best interest. This is called fiduciary duty, and guardians who violate their fiduciary duty by taking actions that are not in the ward’s interest may be held civilly and criminally liable for their actions.
Conservatorship (Guardianship of the property)
Rather than protecting the life, safety, and lifestyle of their ward, a conservator is responsible for protecting the ward’s property and assets. Regrettably, the elderly and mentally disabled are the frequent target of scammers and other bad actors. Even without third parties actively trying to defraud a person out of their property, those who have been ruled incompetent by the court must have a responsible party to oversee their financial affairs.
Under a conservatorship, the rights that can be removed from a ward are similar to those that can be removed from a person under guardianship and, as stated above, these two types of protection typically go hand-in-hand.
In a conservatorship, the primary goal is ensuring that the ward’s assets are protected and used solely for the purpose of maintaining the ward’s life, lifestyle, and dignity.
Just as in a guardianship, the conservator in a conservator ship is a fiduciary. There are strict controls on what they can and cannot do with the ward’s assets. While they may be permitted to sell property belonging to the ward in order to cover the ward’s living, medical, or other expenses, they cannot use any of the assets for any other purpose or combine their own personal assets with those of the ward.
Emergency vs. Permanent Guardianship
Both guardianships and conservatorships can be established on a short-term temporary basis, called “emergency guardianship/conservatorship,” or indefinitely, called “permanent guardianship/conservatorship.”
An emergency guardianship/conservatorship is granted only in extreme cases, where the ward is an immediate danger to themselves and needs to be protected as soon as possible to prevent severely negative outcomes. These orders are granted by the court and are only designed to last for as long as it takes for the more thorough proceedings required to establish a permanent guardianship/conservatorship to occur.
Emergency guardianships/conservatorships last a maximum of sixty days.
A permanent guardianship/conservatorship is a term that’s slightly misleading. These protective arrangements are not actually permanent in all cases. While most guardianships/conservatorships last the remainder of the ward’s life, a ward can have their rights restored by the court if they can demonstrate that they have gained/regained competence and are now able to manage their own affairs and finances.
Do You Have a Loved One Who Needs to be Placed in Guardianship? Contact the Trusted Attorneys at Walker, Hulbert, Gray, and Moore.