ADULT GUARDIANSHIPS
Probate courts have jurisdiction over the appointment and supervision
of guardians of adult persons found to be incapacitated by reason
of physical or mental illness to such an extent that the adult is
no longer capable of making reasonable and rational decisions concerning
his or her person or of managing his or her money and property. All
guardians of the person of an incapacitated adult are must file annual
reports on the physical/mental status of the ward, and all guardians
of the property must file an inventory of assets and annual financial
accountings, all of which are subject to review or audit by the staff
of the probate court. The discharge or removal of guardians and their
sureties is within the jurisdiction of the probate courts.
MINOR GUARDIANSHIPS
Probate courts have jurisdiction over the appointment and supervision
of guardians of the property of minor children. Guardians of the property
of minors also must file an inventory of assets and annual financial
accountings with the probate court. Probate courts may also appoint
guardians or temporary guardians of the persons of minor children
in certain circumstances.
TEMPORARY
GUARDIANSHIP INFORMATION
If you have a child in your physical custody and you are not that
child’s parent, you are without authority to enroll the child
in school, obtain medical treatment for the child or otherwise control
the child without first becoming the legally qualified Temporary Guardian
of Person through the Probate Court of your county of residence. (Alternatively,
you may contact the Juvenile Court about becoming the legal custodian
of the child.)
If you wish to become Temporary Guardian of Person, you must comply
with every legal requirement, including notice to both parents of
the child. If either is deceased, you must furnish the death certificate
or other proof of death. If whereabouts of both parents are unknown,
you will need to go to Juvenile Court. You must furnish a certified
copy of child’s birth certificate and your personal identification.
Upon completion of the forms, you will need to telephone the Probate
Court 229/377-4621) to secure an appointment time to file for temporary
guardianship. If you have any questions about the proceeding, contact
an attorney. Clerks can furnish forms to you but have no authority
to explain the law to you. You will be required to sign a consent
form for your criminal history to be checked.
COST REQUIRED TO FILE PETITION FOR TEMPORARY GUARDIANSHIP
- There are court costs which must be paid at the time you file the
petition. These costs are set by the Georgia Legislature, not the
Court. Clerks will inform you of total costs, which vary depending
on method of service to parents.
Basic Costs: (Both parents signing relinquishment)
Filing petition: $60.00
Recording: $2.00 per page
Law Library Fee: $4.00
Each Certified Copy: $5.00
Additional costs: Sheriff service, postage charges and/or publication
fees (if required)
ALTERNATIVES TO
ADULT GUARDIANSHIP IN GEORGIA
WILLIAM J. SELF, II, JUDGE, Bibb County
© 1999
"Caring for the needs and affairs of those
incapable of caring for themselves@
INTRODUCTION
Is the formal appointment of a guardian by the Probate
Court necessary to care for or conduct the affairs of an adult who has
become incapacitated or disabled? The answer to this very important
question, asked often by not only the family and friends of the adult
but also by the adult, depends on the circumstances of each individual
case. Posing the question is both appropriate and prudent, because adult
guardianship proceedings are fairly complicated and time-consuming,
as well as relatively expensive, primarily as a result of the due process
protections afforded the proposed ward in such proceedings. This is
not to say that guardianship proceedings are overly complex; the due
process protections help assure that the Court receives clear and convincing
evidence of incapacity before removing the rights of an adult citizen
and that the order issued in every case is "fashioned" to
the particular circumstances.
However, there are often available alternatives to
guardianship which may accomplish the needed ends in any particular
case. These alternatives should be considered, where applicable,
and should be utilized in every case when doing so would accomplish
the underlying purpose AND provide any needed protection for the
adult.
It is important to distinguish physical disability
or incapacity from mental disability or incapacity. One can be physically
incapacitated yet retain full mental competence. On the other hand,
one might be mentally incapacitated but be physically quite fit and
well.
The availability and/or effectiveness of any of these
alternatives will likely be dependent upon the type and extent of incapacity.
To be legally effective and sufficient, the documents discussed herein
requiring the signature of the adult must be signed at a time when the
adult is capable and competent to understand the nature and purpose
of the documents. Utilization of or preparation of the alternatives
reviewed in this pamphlet may require the services of an attorney experienced
in this field.
***
LIVING WILL
The Georgia Code defines a living will as a written
directive instructing a physician to withhold or withdraw life-sustaining
procedures in the event of a terminal condition, a coma, or a persistent
vegetative state. It may also direct the withholding of food and water
for a comatose, terminal patient. Its basic purpose is to protect a
patient's dignity and prevent unnecessary pain and suffering at the
end of life. Any person who is of sound mind may execute a living will.
(Physical condition is irrelevant, as long as the individual is fully
capable of understanding the document.)
The Georgia Code contains a form “Living Will,”
which will be presumed valid and effective. There are very precise and
detailed provisions governing the execution of a living will, the
types of witnesses required and a person's right to revoke the living
will. There are a number of specific requirements in the law governing
the conditions under which the life-sustaining procedures may be withheld
or withdrawn. Those relying in good faith on the directive are shielded
from liability. There are criminal sanctions against persons concealing
or forging a living will.
DURABLE POWER OF ATTORNEY FOR HEALTH CARE
The durable power of attorney for health care (DPAFHC)
is quite different from the living will. A living will is a written
set of instructions by the person wishing to express the person’s
intentions regarding life-support decisions. A DPAFHC not only contains
certain instructions but also names an agent to make health care decisions
in accordance with the instructions and to enforce the person’s
stated intentions. It covers many more situations than does a living
will and applies any time a person becomes incapable of making or expressing
health care decisions, not just at the end of life. It also allows for
the authority to make anatomical gifts (organ and tissue donations).
As with living wills, the Georgia Code contains the
form for the DPAFHC and sets forth the statutory requirements of formality
of completion and execution. If the named agent is available, the DPAFHC
will supersede a living will. However, to cover the possibility of the
unavailability of the agent, many attorneys recommend the execution
of both a living will and a durable power.
FINANCIAL POWER OF ATTORNEY
In addition to a health care power of attorney, one
may also execute a financial or general power of attorney, which may
be combined with or executed separately from the health care power.
A financial power of attorney names an agent to act in the place of
the individual, primarily in monetary and property matters, and defines
the extent of or limitation on the authority given. The authority granted
may be very limited and specific or be quite broad and include the authority
to: write checks and make deposits in accounts; buy and sell real estate
or other property or investments; negotiate and settle debts and claims;
etc. Powers of attorney (both general and health care), executed while
the adult is mentally competent, often allow for the conduct of all
business and personal affairs of the adult once incapacitated without
the necessity of guardianship. However, in the event a guardian of the
property is appointed for the principal, the power of attorney is terminated
by the entry of the order appointing the guardian.
The Georgia Code now contains a form for the Financial
Power of Attorney and an explanation for principals of the nature of
the power.
LIVING TRUST
A competent adult may also create an inter vivos, or
"Living", trust which provides for the handling of all or
certain financial affairs by a designated trustee. Like a power of attorney,
it allows one to specify the person or entity (e.g., a trust department)
to handle the affairs and manage the trust property and may define the
exact manner of property management. It is also beneficial in that it
designates the trustee with whom third parties may deal regarding financial
and other matters within the scope of the trust in the event of incapacity.
REPRESENTATIVE PAYEE STATUS
When a person who receives Social Security, Supplemental
Security Income or VA benefits becomes incapable of managing those benefits,
the Social Security Administration or Veterans’ Administration
can appoint a representative payee for such benefits without the
necessity of guardianship. If the person is a resident of a nursing
or personal care home, the benefits may be made payable directly to
the care facility. If the resident also qualifies for Medicare or Medicaid,
an assignment of benefits may satisfy any balance of monthly care charges
in excess of Social Security or VA benefits.
GEORGIA MEDICAL CONSENT LAW
It is also important to recognize that, in an emergency,
the law allows physicians to treat anyone who is incapable of giving
informed consent. In non-emergency situations, the next of kin
may consent if the patient is unable to do so. The Georgia Medical Consent
Law lists the persons who may consent to medical care for another and
authorizes physicians to act in emergency situations. Guardianship may
not be necessary to consent to medical treatment, unless there is a
dispute among those persons having equal voice under the law.
PLACEMENT DECISIONS AND PROCEDURES
Placement in a personal care home or nursing home often
can be accomplished without a guardian, as long as the resident
is either (a) cooperative or (b) incapable of objecting. A competent
adult has the right to determine his own residence, and a facility is
without authority to restrain an adult absent consent, unless the authority
to determine residence has been placed in another (a guardian). At times
it may be difficult to gauge whether a new resident will ultimately
"object," since he may be resistant at first but may adjust
after a period of time and voluntarily remain resident. Of course, it
is also necessary to make the financial arrangements for the care of
the resident, which may be done by the resident (if competent), an attorney-in-fact,
or by anyone accepting the obligation and guaranteeing payment.
In 1999, the Georgia Legislature passed the “Temporary
Health Care Placement Decision Maker for an Adult Act.” Under
the Act, upon certification by an attending physician that an adult
in a hospital, institution, medical center, or other health care institution
is incapable of giving consent to a discharge from such facility and
a transfer or admission to an alternative facility or placement, including
nursing facilities, personal care homes, rehabilitation facilities and
home and community based programs, considered to be in the adult’s
best interest, authority to grant such limited consent is given to a
list of persons similar to the Georgia Medical Consent Law. If no one
authorized by such law is available or if all who are available waive
authority to consent or dissent to the discharge, transfer or admission,
a petition may be filed in the probate court seeking an order solely
authorizing such discharge, transfer or admission. The order will be
limited in time to those purposes and does NOT result in the appointment
of a guardian.
GUARDIANSHIP PROCEEDINGS
Of course, there are times when full, legal guardianship
is needed and necessary. In those cases, the law provides appropriate
protections for the adult, and guardians appointed by the Court
are monitored by and must file written, periodic reports on the condition
of the ward and the ward's property with the probate court establishing
the guardianship.
NOTE: This information is provided as a public service.
It is NOT intended as a complete statement of the law applicable to
every circumstance. If you have any questions about the alternatives
discussed herein and their appropriateness to a particular situation
or circumstance or if you need assistance in determining whether formal
guardianship is necessary, please consult an attorney.
INVOLUNTARY
TREATMENT
Probate courts may order the assessment and evaluation
of persons 17 years of age and older who are believed to be mentally
ill and/or addicted to or abusive of alcohol or drugs and who appear
to be a risk of danger to themselves or others. The probate courts in
counties in which there is located a state regional mental hospital
or a designated private mental hospital may also order the involuntary
treatment of such persons for limited periods of time.
In crisis situations, the law allows the judge to order a person to
be apprehended by the Sheriff or his deputy on the basis of a two-party
affidavit (to be completed by two individuals 18 years of age or older
who have observed the person in question within the last forty-eight
(48) hours) and delivered to a hospital for evaluation by a doctor or
other appropriate medical personnel to determine whether in his or her
opinion involuntary treatment is necessary or advisable.
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