Guardianship is necessary when an adult (ward) is deemed incapacitated or no longer able to take care of their own affairs by a healthcare professional. A person can’t be declared incompetent simply because they make irresponsible decisions. Also, a developmental disability or mental illness is not enough to declare a person incompetent
The Difference Between Guardians and Conservators in Georgia and North Carolina
In North Carolina, a guardian is a term used for both aspects of managing a wards life. There is a “Guardian of the Person” that is authorized to make legal and health care decisions on the disabled person’s behalf. In addition, there is a “Guardian of the Estate” that is authorized to make financial decisions on the disabled person’s behalf. In Georgia, different terminology is used to distinguish the two aspects of managing a ward’s life. A Guardian makes decisions regarding health and safety, while a person appointed to handle finances is called a Conservator. Guardianship and Conservatorship should only be employed when there is clear evidence that the person’s disability will substantially impair their decision-making ability.
Guardians May Be Limited in Their Roles
When incapacitated individuals can make responsible decisions in some areas of their lives but not others, the court may limit the guardian’s decision-making power. The guardian may only exercise rights specified by the court.
The Georgia and North Carolina Guardianship Process
Anyone can request guardianship in Georgia or North Carolina. An attorney is usually retained to file a petition for a hearing in the probate court in the disabled person’s county of residence. The ward is entitled to legal representation at the hearing, and the court will appoint an attorney if they can’t afford one. At the hearing, the court attempts to determine incapacitation and the level of required assistance. The court then decides if the person seeking the role of guardian can fulfill the role.
A guardian may be a spouse, another family member, friend, neighbor, or professional guardian (an unrelated person with special training).
While you are healthy, you may nominate a proposed guardian through a durable power of attorney in case you become incapacitated later. Courts give first consideration to those who play a significant role in your life — those who understand your needs and preferences. Two individuals can also share guardianship and conservatorship duties.
The Law Office of Keith R. Miles, LLC was founded in 2008 and serves clients throughout Georgia and North Carolina. The firm focuses on holistic legacy planning and elder law for individuals and families – both traditional and “blended.”
Because our clients may have minor children while also caring for aging parents, we handle complex elder law issues such as long-term care planning, Medicaid planning, and special needs planning.
Contact us for a consultation to appoint a future guardian through powers of attorney or seek guardianship for a loved one in need!