A critical role of Probate Court is the appointment and supervision of guardians and conservators. These people help those who are unable to care for themselves or their financial affairs due to physical or mental health issues, or a combination of the two. Alderman & Hutcherson represents guardians and conservators to help them achieve their goals of properly caring for those with limited capacities (individuals known as wards) as well as family members who want to make sure guardians and conservators act appropriately and in compliance with the law.
Guardians and Conservators for Adults
Probate Court appoints and supervises guardians and conservators of minors and adults found to be so incapacitated that they are no longer capable of making reasonable and rational decisions concerning their personal affairs or managing their money and property.
- Guardians make decisions concerning personal and health affairs of the ward.
- Conservators manage the income, property and debts of the ward.
- Guardians need to file annual reports to the court on the physical/mental status of the ward.
- Conservators must file an asset inventory, an asset management plan and annual financial accountings, all of which could be reviewed or audited by the Probate Court staff.
Any interested party (normally a family member) can petition the court to have a guardian or conservator appointed. The Probate Court judge considers whether the person is incapable of managing his affairs due to one of the following:
- Mental illness, retardation or disability
- Physical illness or disability
- Chronic use of drugs or alcohol
- Any combination of the above.
The court also looks at the extent to which the person lacks sufficient understanding or capacity to make significant, responsible decisions or the ability to communicate such decisions.
The job of a guardian is to do what’s reasonably necessary to provide adequately for the support, care, education and well being of the ward, including:
- Respecting and maintaining the ward’s rights and dignity
- Making arrangements using funds from the ward’s estate or other parties for the support, care, well being, appropriate rehabilitation, training and education of the ward
- Being reasonably accessible to the ward
- Taking reasonable care of the ward’s personal property and effects.
A guardian has the ability to:
- Establish the ward’s place of residence
- Sue on the ward’s behalf
- Control the ward’s medical treatment
- Control and retain the ward’s possessions.
A guardian is not authorized to:
- Start divorce proceedings for the ward (which requires court involvement)
- Mix the ward’s funds with his or her personal funds
- Dispose of the ward’s assets without the court’s knowledge and approval.
Even if a guardian has been appointed, the ward has a right to communicate freely and privately with those other than the guardian unless there’s a court order to the contrary. If there’s a complaint by the ward about the guardian, the ward, his or her representative or lawyer can file a petition with the Probate Court claiming the guardian is breaking the law. The court could conduct a judicial inquiry and issue orders to correct any abuses by the guardian, and may remove the guardian and appoint another.
Guardians and Conservators for Minors
Probate Court also appoints and supervises temporary and permanent guardians for minors. A permanent guardian may be appointed for a minor who
- Has no living parents or
- Has not been properly cared for by his or her parents, who are given notice a guardian may be appointed but don’t object.
Permanent guardianship of a minor is not the same as legal custody, which may be granted only by superior or juvenile courts in Georgia.
If temporary guardianship of a minor is granted, it does not permanently terminate the parental rights of the parents. Temporary guardians have, during the term of the guardianship, all of the powers of a parent , including the ability to consent to medical treatment and make educational decisions.
Probate Court can also appoint and supervise conservators for minors. This may be needed when a minor has experienced one of the following:
- Inheritance of money or personal property not in a trust or under the management of a testamentary conservator
- Award of damages in a personal injury lawsuit
- Being the named beneficiary of a life insurance policy or retirement benefits.
If a family member or someone you care about is in need of a guardian or conservator, or if you believe a guardian or conservator is not living up to his or her legal duties, contact Alderman & Hutcherson so we can talk about what’s going on, how the law applies in the situation and the steps the Probate Court could take. We take great pride in the fact that through our guardianship practice we help those who are in great need, and we can help your family, too. Contact us online or by calling (478) 476-9110). Located in Macon, we serve people throughout the state of Georgia who need assistance with guardianship issues.