Last month I tackled the topic of guardianships and conservatorships. As a quick review, if someone is incapacitated either due to disease or injury an “interested person” can petition the court to make those financial decisions (conservatorship) or non-financial decisions (guardian-ship) on behalf of the incapacitated individual. Sounds complicated, doesn’t it?
An “interested person” is someone who has an interest in the welfare of the incapacitated individual and is not a minor nor themselves incapacitated. Please note, the court bases its findings on whether or not someone is capable of making rational decisions not whether or not that individual is making good decisions or decisions with which the “interested person” agrees.
Step one in the process is petitioning the probate court in the county of residence where the incapacitated individual lives. Here’s where things can, and usually do get messy. The courts will notify the individual of the filing. The potentially incapacitated person then has the opportunity to hire their own lawyer. So unless the person for whom you are trying to be named conservator and/or guardian is in agreement, this process has the potential to pit you against the very loved one you are trying to help in court. The court’s decision will be based not just on that to which you testify, but the court will also want to hear from an expert(s) like a doctor or psychologist or psychiatrist or licensed clinical social worker. If you are successful in being named either guardian or conservator you need to be aware of your legal obligations.
Both guardianship and conservatorship carry heavy fiduciary responsibilities. You will be obligated to act at all times in your ward’s best interests. The guardian/conservator must “exercise reasonable care, diligence, and prudence in the performance of his/her duties as if he/she were attending to his/her own affairs.”* Also of note is the requirement that conservators be bonded to protect against financial exploitation.
I would reiterate that the whole process of being named as guardian and/or conservator should, I believe, be viewed as a last resort. It can be an ugly experience that tears families apart. On the other hand, if you have your loved one’s best interests at heart and their well-being is at risk, you may not have much choice. I think the important thing for everyone involved to keep in mind is what is in the best interests of that person for whom we all care deeply? The decision should not just be about what you think is best. It should not be about protecting an inheritance. It must be about what’s best for that loved one. This is not an easy choice but if you feel there are no other options then you have to do what you can to protect your loved one and in that case, nothing should deter you from doing what you have to do.
*Quoted from Your Guide to Guardianships and Conservator-ships in Georgia by Paul Black
Tim Golden is the owner of BrightStar Care, Lawrenceville. You can reach Tim at (404)281-1537 or by emailing firstname.lastname@example.org. For more information please visit http://www.brightstarcare.com/lawrenceville/
PO Box 634
Lawrenceville, GA 30046