Legal
What is a Guardian?
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An individual’s right to make decisions concerning their own person and property is a closely and stringently guarded right protected by both the laws of the United States and the State of Georgia. Unfortunately, a brain injury can impair a person’s ability to make those decisions concerning their life and property thus rendering them legally incapacitated or more commonly referred to as incompetent.
A person may be found to be legally incapacitated when an impairment caused by mental illness, mental disability, physical illness or other reasons results in a lack of understanding or capacity to make or communicate significant responsible decisions concerning his/her person or property. In Georgia, the power to determine a person incapacitated rests with the Probate Court in the county where that person resides.
There are two different types of guardianships that the Probate Court may appoint:
1. A Guardianship of the Person: The Guardian is responsible for the ward’s (the incapacitated individual) person, including making healthcare decisions;
2. A Guardianship of the Property: The Guardian is responsible for managing and maintaining the ward’s estate to provide for the continued support of the ward.
In each type of guardianship, the person seeking to establish the guardianship must show the Court, by clear and convincing evidence that the proposed ward is of such unsound mind that he/she is not competent to manage the ordinary affairs of their life. As there are no specific acts that define incapacity or incompetence, the Court looks at each case on an individual basis. The Court will require testimony to specific details of incompetence to base its determination of incapacity on.
Specific examples of acts that may establish the necessity for a guardianship include, but are not limited to, the inability to manage day-to-day financial transactions, the inability to maintain appointments or schedules, the inability to maintain daily hygiene or medication routines, etc. However, the Court looks at each case individually and what constitutes incapacity in one set of circumstances does not necessarily establish incapacity in all cases. The party seeking the appointment of a guardian has the burden of establishing that the proposed ward is incapacitated to such a degree that the guardianship is required.
Under certain circumstances, the Court will appoint an emergency guardianship over person or property. The required circumstances must be truly emergent in nature, for example: immediate decisions regarding health care must be made or the proposed ward is in danger of losing their estate or property contained in their estate in the immediate future.
As a guardianship creates a legal relationship with both legal rights and obligations between the guardian and the ward, it is often advisable to seek legal advice from an attorney prior to pursuing the appointment. Further, in deciding whether to pursue a guardianship, it is important to remember that a guardianship effectively takes away the rights of the ward to manage their own affairs and make decisions effecting their life and only by further Court action can those rights be restored.
Lori E. Jolly is an attorney with Commander & Pound.
lori@commanderpound.com
www.gaprobate.org - Georgia Probate Forms and Instructions online
www.gaprobate.org - Georgia Probate Courts Contact Information
http://www.cviog.uga.edu/Projects/gainfo/co_web.htm - Georgia Counties Information Sites