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									 Are there alternatives to guardianship?                                What is a guardianship?                                Who can be a guardian?

      n a free society, the right to make personal          A guardianship is a legal relationship wherein a court    Any person who is not a minor, has not been
                                                            appoints a person (a guardian) to make certain deci-      deemed “incapacitated” or does not have a sub-
      decisions - such as where to live, whom to marry,
                                                            sions for another person (a ward) proven to need          stantial conflict of interest can be a guardian. The
      or how to spend money - is a key part of human        such assistance. The decision-making power re-            law lists preferences as to whom a court should
dignity. Taking away any of an adult’s rights to make       moved from a person should be as limited as pos-          appoint.
decisions is a serious matter and should be a last resort                                                             A person chosen by an adult, especially before
used only to the extent absolutely necessary. Often                                                                   any interruption in decision-making ability, has
                                                              Under Georgia law, a guardianship shall be “de-         first preference. Thereafter, in descending order,
informal help with money management and other                                                                         preferences are a spouse, an adult child, and
                                                              signed to encourage the development of maximum
counsel will suffice.                                                                                                 then the parent.
                                                              self-reliance and independence in the [person] and
                                                                                                                      The court may pass over someone considered
                                                              shall be ordered only to the extent necessitated by     a preference to appoint someone else. If no one

T    here are several other ways besides a
     guardianship to act on behalf of someone
whose decision-making ability is seriously
                                                              the person’s actual and adaptive limitations.”
                                                              (O.C.G.A. 29-5-7(h)).
                                                                                                                      is available or qualified to become a person’s
                                                                                                                      guardian, the court may appoint the director of
                                                                                                                      the county Department of Family and Children
interrupted and whose well-being is in jeopardy.                                                                      Services as guardian of the person and the
                                                            A guardianship can be created on an emergency             county guardian as guardian of the property.
    ✔ Durable power of attorney allows a com-               basis, and it can be temporary (limited in duration)
    petent individual to name another person,               or permanent. Guardianships can be limited in                     What is the procedure for
    known as the attorney in fact, to have author-          scope, removing as few rights as necessary.                      appointment of a guardian?
    ity to make decisions in specified areas.
                                                            Guardianships can be of the person or they can be         Guardianship is imposed by a formal legal pro-
                                                            of the property. The most restrictive guardianship        cedure since a person’s right to make decisions
                                                            is a guardianship of the person and property with-        should not be casually removed. Any interested
    ✔ Health care power of attorney grants au-              out any limits on the powers of the guardian.             person may file a petition by completing the form
    thority specifically for health care decisions.                                                                   available from the county Probate Court. Limits
                                                                                                                      to the guardianship should be listed in the peti-
                                                              A Guardianship of the Person can take away a            tion.
    ✔ A trust is a legal plan for placing property
    under the control of a trustee who manages                person’s rights to decide to marry, make contracts,       Friends and relatives . . . should bring the
    the property for the benefit of another person,           consent to medical treatment, establish a residence,      abilities of the person to the court’s attention
    a beneficiary.
                                                              and bring or defend an action in court.                   so rights are not lost unneccessarily.

    ✔ Joint property allows two or more persons                                                                       There is a filing fee. A report of a physician or
    to own property together.
                                                              A Guardianship of the Property can take away a          psychologist who has examined the person
                                                              person’s rights to decide to bring and defend ac-       within ten days of filing the petition should be
                                                              tions in court, make contracts, buy and sell prop-      provided where there is only one petitioner.
    ✔ Representative payeeship exists when the                erty, and enter into business and commercial            The court orders an evaluation by a disinterested
    Veterans Administration or Social Security                                                                        psychologist. If probable cause of incapacity ex-
    Administration appoints someone to handle
                                                              transactions.                                           ists, the judge will then schedule a hearing from
    benefits checks for a person determined in-                                                                       which the judge will decide to grant the guard-
    capable of doing so.                                    Since the court should remove as few rights as pos-       ianship or not.
                                                            sible, and all of the rights under each type of guard-    Once a guardianship is imposed, any interested
Nevertheless, there are times that the best or only         ianship are removed if the court says nothing about       person, including the person under a guardian-
type of substituted decision-making for a person is         limits, it is essential that any guardianship action be   ship, can ask the court to modify or terminate
by means of a guardianship.                                 specific as to what is needed.                            the guardianship.
What are the duties and the powers                           What are the rights of the person
          of the guardian?                                               (ward)?

The guardian of the person has the                    The person retains rights even under the
following duties toward the person:                   most sweeping guardianship:
✔ to be reasonably accessible and to main-             ✔ to communicate freely and privately with per-
tain regular contact;                                  sons other than the guardian, except as or-
                                                       dered by the court;
✔ to respect and maintain individual rights and                                                                                                          a        n       d               i       t   s
dignity;                                               ✔ to vote and to make a will, subject to some
                                                       limitations and exceptions;
✔ to encourage the development of maxi-
                                                       ✔ to have a guardian acting in the person’s
mum self-reliance and independence;
                                                       best interest;                                                                                    ALTERNATIVES
✔ to arrange for support, care, well-being,            ✔ to have a guardian who is reasonably ac-
training, and education in the least restrictive       cessible;
environment considering the needs and re-
sources of the person;                                 ✔ to ask the court to modify or terminate the
                                                       guardianship thereby restoring rights.                                                            i n          G e o r g i a
✔ to make decisions in the specific areas of
decision making the court has removed from
the person;
                                                           When no other means is available, a
✔ to report to the court within four months                guardianship can be a useful and necessary
and annually thereafter.                                   way to provide for substituted decision-
                                                           making of an adult who needs it. Georgia
The guardian of the property has the                       law recognizes the dignity of all human
following duties:
                                                           persons by authorizing the removal of
✔ to sell, lease, encumber or exchange prop-               decision-making abilities only to the
erty of the person for payment of debts, sup-              extent absolutely necessary. Guardians, for
port and education of the person or the
person’s dependents;                                       their part, have special duties to the person
                                                           and to the court. Everyone concerned has
✔ to make and file an inventory;                           a responsibility to ensure that the person
                                                           retains as many rights as possible.
✔ to file an annual report;

                                                   The Georgia Advocacy Office is the Protection and Advocacy System for GA and receives funding
✔ to make decisions in the specific areas of       through:
decision making the court has removed from         •US Dept. of Health and Human Services/Administration on Developmental Disabilities (PADD);           The Georgia Advocacy Office
                                                   •US Dept. of Health and Human Services/Center for Mental Health Services, Substance Abuse             The Protection and Advocacy System for Georgia
the person.                                        and Mental Health Services Administration (PAIMI);
                                                   •United States Department of Education/Rehabilitation Services (PAIR);
                                                   •Georgia Dept. of Human Resources, Georgia Division of Rehab. Services (Tools for Life)/(PAAT);
                                                                                                                                                         100 Crescent Centre Parkway
The guardian of the property is entitled to        •Donations from Individuals and Corporations.                                                         Suite 520
commissions for what s/he has received and         These contents are solely the responsibility of the grantee and do not necessarily represent the      Tucker, GA 30084
                                                   official views of the Center for Mental Health Services, Substance Abuse and Mental Health Services   404•885•1234 or 1•800•537•2329 (voice/tdd)
paid out.                                          Administration.                                                                             

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