As families age, or in the case of injury or illness, situations may arise when someone needs to be appointed to oversee the care and maintenance of someone else or their property. Georgia law provides a process though the Probate Courts where a Guardian or Conservator may be appointed for that purpose. A Guardian may be appointed by the Probate Court for an adult Georgia resident who is found by the Court to lack sufficient capacity to make or communicate significant responsible decisions concerning their health or safety. A Conservator may be appointed for an adult resident of Georgia who is found by the court to lack sufficient capacity to make or communicate significant responsible decisions concerning the management of their property. The Guardian and Conservator can be, but do not have to be, the same person. The person for whom the conservatorship or guardianship is created is referred to as the Ward.
The Georgia Code has specific requirements for the petition that needs to be filed and must be followed for the appointments to be granted. The petition must be filed by two individuals with personal knowledge of the facts and condition of the Ward or be filed by one individual with the affidavit of doctor, psychologist, or social worker who has performed an examination of the Ward.
When a guardianship or conservatorship is created, a legal relationship is created whereby the Guardian or Conservator must give a fiduciary duty to or undivided loyalty to the person or property of the Ward. This means that all the actions taken on behalf of the Ward’s person or property must be done in a manner that is for the benefit of and in the best interest of the Ward. If actions are taken that are self-serving or for the benefit of someone other than the Ward, the Conservator or the Guardian can be removed from their position upon proof given to the court and may even face civil or criminal liability for their actions. Because of this strict duty owed to the Ward, the courts often consider it to be a conflict of interest for the person petitioning to be the Guardian or Conservator to own property jointly with the proposed Ward. The important distinction being that the Guardian or Conservator must not only avoid conflicts of interest, but also the appearance of a conflict of interest. Therefore, it can be difficult for the Guardian or Conservator to be spouse or even the children of the Ward. In some cases, though, the court will allow a spouse or child to serve if a full disclosure of the jointly owned property is made and the court is sufficiently convinced that the Ward’s needs will be provided for first.
Guardians are required to give the court Personal Status Reports or PSRs. The purpose of these reports is to keep the court informed about how the Ward is doing and what kind of care the Ward is getting. The reports contain general information about how the Ward is doing, how the needs of the Ward are being met, and if there are changes in the Ward’s condition requiring a change in care. These reports pertain only to the condition of the Ward since a Guardian is appointed over the person of the Ward.
Conservators must also file reports with the court. The reports of the Conservator include an inventory of the Ward’s property and a plan for managing the property. The plan would include information such as investing money, managing property, and what expenses are expected in the normal course of the oversight. It is important that the plan should be to care for the actual needs of the Ward. If the property is of sufficient value so that the needs of the Ward can be meet from income only, there must be an effort to preserve the corpus of the property. If it will be necessary to use the income and corpus, that should be included in the plan. If conditions change requiring a change in the plan, the court should be notified.
It can be challenging to find yourself in the situation where a loved one needs care that they are not able to communicate or provide for themselves. Thankfully, Georgia law provides this process and though it may seem cumbersome, it is designed and intended to not only protect the Ward, but also protect the Guardian or Conservator in carrying out their duties.
W. Cavan Perry is a partner with the law firm of Dover Miller Karras Langdale & Brantley, P.C., and practices estate planning, probate law, business law, banking law, real estate, and collections.