Guardianship & Conservatorship Lawyers in Advocating for Your Loved Ones
Being able to make decisions for yourself is an important part of the freedom that adults enjoy, but what happens when someone isn’t able to make good decisions for themselves or act in their best interests? While you may not always agree with the decisions a loved one makes, people generally have the right to live their lives as they see fit. However, there may be some severe circumstances where someone doesn’t have the capacity to understand what is happening around them or make decisions that support their well-being. In these cases, guardianship or conservatorship may be necessary.
It can be difficult to see a loved one go through a difficult time, but in some cases, it’s best for someone else to be charged with making decisions in their best interests. Lunn Law LLC can help you understand whether guardianship or conservatorship is the right choice for your situation and help you get the legal process started.
What Is the Difference Between a Guardianship and a Conservatorship?
While guardianships and conservatorships both involve being responsible for making decisions for someone else, they aren’t the same thing. Learn more about the differences and what each role entails below.
A guardianship happens when a minor or incapacitated adult needs someone to be appointed to care for them and make decisions concerning their well-being. Guardianships can happen when a minor’s parents are deceased or are unable to care for them, such as in the care of imprisonment or substance abuse. Guardianships of adults usually happen when a person has a disability that leaves them unable to make decisions for themselves, is experiencing severe and ongoing mental health issues, or is dealing with dementia or another memory-related condition. Guardians are able to make decisions about most areas of the ward’s life, including those involving medical treatment and care, where the person will live, and what will be done to manage their care.
A conservatorship happens under the same circumstances as guardianship, but a conservator is much more limited in their decision-making power. Conservatorships involve the ward’s financial affairs. A conservator is responsible for managing the ward’s finances in a way that reflects the interests of the ward. This means that a conservator must make financial decisions they believe will benefit the ward’s financial well-being and not their own.
Who Is Eligible to Be a Guardian or Conservator?
Any adult who has sufficient capacity is able to be a guardian or conservator, but the person must be willing and able to make decisions that are in the best interest of the ward. In general, a guardian or conservator should be someone who is very close to the ward. Preference is given by the courts to someone who was named by the ward, such as in an advance health care directive or living will. However, if the courts believe that someone else is better suited, they have the ability to go against this preference.
In general, a spouse, adult child, or parent of the ward is the first choice for a guardian or conservator. However, this role can also be given to another person proposed by one of these family members or someone who was previously appointed as the ward’s guardian. If there are no close relatives who are deemed suitable or willing to take on the role, the courts can appoint an extended family member, friend, or county guardian.
How Do You File for a Guardianship or Conservatorship?
If you believe that guardianship or conservatorship is necessary, you will need to file the appropriate form and accompanying paperwork in the probate court where the proposed ward lives. The probate court will review the petition and decide whether the case meets the criteria to start guardianship proceedings. If so, the proposed ward will receive copies of the petition and be notified that they must complete an evaluation through the courts to determine if they have sufficient capacity to be making decisions on their behalf.
If the evaluation results indicate that the person is incapacitated, a formal hearing will be scheduled to have someone granted guardianship. Adult guardianship can be especially difficult, and the proposed ward has the right to legal counsel and representation during the process.
What Requirements Must Be Met for a Guardianship or Conservatorship to Be Granted?
Taking away someone’s right to make decisions for themselves isn’t something the courts take lightly. For someone to be considered an incapacitated adult, a court-ordered evaluation must show that the proposed ward does not have sufficient capacity to act in their best interests. This evaluation is done by a licensed mental health professional, such as a psychologist, a psychiatrist, or a clinical social worker.
If a person already has an advance directive appointing a guardian and conservator, the process can be much simpler, as the person just needs to fit the medical criteria to make the advance directive effective. For example, an advance directive can kick in if a person experiences a medical emergency and is in a coma or if someone experiences a severe mental health episode.
How Long Does a Guardianship or Conservatorship Last?
Guardianships and conservatorships generally last until the person dies, unless there is a significant change in circumstances. For example, a conservatorship can end if the person’s rights are restored or if their financial situation changes to the point that it is no longer necessary to have someone in charge of their assets and financial decisions. Guardians and conservators are also able to petition the courts to appoint a successor if they no longer want or are able to act in the role. This filing needs to be done in the probate court where the guardianship or conservatorship was granted.
It’s possible for someone who is under guardianship or conservatorship to be able to regain their rights, but it can be a very difficult process. The person will need to prove that they have the mental capacity and understanding to be able to make decisions in their own interests. If you are no longer interested in serving as a guardian or conservator or you are a ward who wants to petition to have their rights restored, speak to an attorney about your situation and the next steps.
What Are the Benefits of Using a Guardianship & Conservatorship Attorney in Georgia?
Taking steps to ensure that a loved one is safe is important, but petitioning for guardianship or conservatorship should be a last resort. By the time things get to this point, it’s likely to be an emotional and difficult time for everyone involved. Working with a guardianship and conservatorship attorney in Georgia helps ensure that you understand how the state laws and processes apply to these situations. It can also be of great help to work with someone who has helped others through similar scenarios, so you can ask questions and get real answers about how the process works and what to expect.
Filing for guardianship or conservatorship is a serious decision, and it’s important to have knowledgeable and experienced legal counsel as you navigate this process. If you have questions about guardianship or want to file for a conservatorship, call our Georgia office at 770-762-4628. You can speak with a member of our legal team and schedule your initial consultation so we can learn more about your case and how we can help.