All Answers are specific to Georgia law.
This FAQ does not constitute legal advice. For more information, or for advice concerning your specific situation, consult Karen S. Hindson or Joy T. Melton of Hindson & Melton LLC.
The individual who is appointed by the court to be responsible for making decisions concerning the health and safety of another adult is called the “guardian”.
What Court handles guardianship cases?
The Probate Court of the county in which the incapacitated adult is domiciled or is found.
Who may be appointed guardian of an incapacitated adult?
An individual or a public guardian may be appointed, or the Department of Human Resources. The court will not appoint a guardian who has a conflict of interest with the incapacitated adult unless the court determines that the appointment would be in the adult’s best interest or the conflict of interest is insubstantial.
Under what circumstances will the Court appoint a guardian?
Only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety. The guardianship will only be ordered after a determination that less restrictive alternatives are not available or appropriate.
What is the order of preference for appointment as guardian?
Under the law the court is to appoint that individual who will best serve the interest of the incapacitated adult, considering the order of preferences listed here –
1- an individual nominated by the adult in writing
2- the spouse of the adult or someone nominated by the spouse
3- an adult child of the adult or someone nominated by the adult child
4- a parent of the adult or someone nominated by the parent
5- a guardian who was appointed to serve when the adult was still a minor
6- a guardian previously appointed by Georgia or another state
7- a friend, relatives, or any other individual
8- any other person found suitable and appropriate and willing
9- county guardian
A public guardian may be appointed if no other person is available to serve as guardian, or the Department of Human Resources may be appointed.
Who may file a petition for appointment of a guardian?
Any interested person.
The petition must be sworn to by two petitioners who have seen the proposed ward (incapacitated adult) within the last 15 days, or by one petitioner and one physician, psychologist, or licensed clinical social worker who has examined the adult within the last 15 days.
What happens once a petition for guardianship is filed with the Court?
The court reviews the petition and decides whether there is probable cause to believe that the proposed ward needs a guardian. If so, the court has a copy of the petition delivered to the proposed ward, notifying him or her of their rights, including the right to counsel. The court also gives notice by mail to certain individuals including the proposed ward’s spouse, children, and anyone who is nominated to serve as guardian. If there is no spouse or adult children, friends or other adult relatives may receive notice.
Who evaluates the proposed ward for the Court?
The court appoints a physician, psychologist, or licensed clinical social worker to evaluate the proposed ward and make a written report to the court. The proposed ward may be silent. His legal counsel may be present but may not participate. The proposed ward’s legal counsel may file a written response to the evaluation.
When is a hearing scheduled?
After receiving the evaluator’s report, if the court finds there is still probable cause that the proposed ward needs a guardian, the court schedules a hearing and notifies the proposed ward, his legal counsel, and other adults named in the petition. The hearing normally takes place at the probate court.
What if an emergency guardian is needed?
Any interested person may file a petition for appointment of an emergency guardian, where there is an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.
If the court determines there is probable cause, a hearing is scheduled between three and five days after filing of the petition.
Under some circumstances an emergency guardian can be appointed to serve until the emergency hearing takes place.
Emergency guardianships last not longer than 60 days.
Contact Karen Hindson for more information.
