A guardianship is the legal appointment of a person (the guardian) by a judge to oversee the wellbeing of another person (the ward). Anyone can submit a petition (a formal request) to the probate court to be the guardian of a person. A guardianship is necessary when someone doesn’t have a healthcare directive and there is no one with the legal authority to make decisions about a person’s physical well-being. Deciding what hospice facility, nursing facility, assisted living facility or even who can talk to a doctor about medical treatment are all controlled through a guardianship.
While anyone can ask to be a guardian, the court will conduct an independent evaluation to see if the guardianship should be granted. The steps below are a broad overview of the process. Each step has many requirements.
- Someone (usually a family member) will need legal authority to make decisions about a parent or an adult child’s physical needs and will submit a petition to the court asking them to be appointed. The petition will ask for personal information of the petitioner, name interested parties, and ask a series of questions about the ward. The petition is submitted to the court with a fee. The guardian should be prepared to submit to a background check and may need to post bond, especially if there is any financial control requested.
- The court reviews the petition and if they determine there is a basis for the petition (i.e. – mom has dementia and her doctor says she cannot make decisions), then the court will have an attorney represent the ward and will set a date for an evaluation by a physician.
- The physician will meet with the ward and determine if they are capable of making their own decisions and are able to make or communicate significant responsible decisions about their health and safety. If the evaluator determines the ward does not need help, the petition is rejected. If the evaluator determines a guardian is necessary, the court will order a hearing.
- The hearing follows the rules of civil procedure, meaning that evidence will be presented (medical documents, IEP plans, Social Security paperwork, etc.), witnesses will be called to testify under oath, and two attorneys will be asking questions and making arguments about the guardianship. If the guardianship is uncontested (one person is asking to be guardian and everyone agrees), the process may be fairly smooth, but time consuming.
- Every year the guardian must submit an annual report to the court on the Ward, and notify the court in any change of address or circumstances. If the guardian wants to move the Ward, the guardian will need to ask the court to move the guardianship.
As you can see, getting appointed as guardian requires many steps. Getting a guardianship can take time (sometimes months), and then requires the guardian to make reports to the court annually. A guardianship is sometimes required, but if a family member has a health care directive, a formal guardianship may not be needed. A healthcare directive legally appoints someone (an agent) to make decisions about your health and have access to medical information. A healthcare directive requires no court appointment, oversight, or annual reporting. However, a health care directive grants power to an agent, it does not take away power from the impaired person. A guardianship is the only way to remove power from an individual. Guardianships can be costly in time and money and should only be considered if there is no alternative. Everyone, regardless of age, should have a healthcare directive in place. Aside from preventing the need for a potential guardianship, a healthcare directive allows you to make your medical preferences known. The document can act as your voice in the event you are unable to speak for yourself.
An estate plan could include various types of trusts, a will, powers of attorney, an advanced directive, and other instructions your family and friends should take if you become incapacitated or die. Instead of leaving your future in the hands of the court, contact our Georgia estate planning attorneys at Grissom Law, LLC today.
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