Last time, we started discussing how the law here in Georgia provides two legal mechanisms through which families can definitively establish who will care for loved ones who are no longer able to care for themselves.
Specifically, we discussed both guardianships and conservatorships. To recap, a guardianship vests an appointed individual with the power to make decisions related to personal health and safety on behalf of an individual lacking the necessary capacity.
A conservatorship, on the other hand, vests an appointed individual with the power to make decisions related to finances and property on behalf of an individual lacking the necessary capacity.
Is filing a petition to be appointed a guardian or conservator always the best idea?
The decision as to whether filing for a guardianship or conservatorship is a good idea depends entirely upon the circumstances and the individuals involved. In other words, this is a fact-driven determination, and there is therefore no single definitive answer as to when this step should be taken or whether it’s the best course of action.
However, experts do advise people to remember that as much as guardianships and conservatorships are meant to help otherwise incapacitated individuals, they are still tantamount to taking away some of their rights and, as such, a relationship could become strained. Consequently, experts recommend that people go to great lengths to ensure that there are no less restrictive or less intrusive alternatives before proceeding with the petition.
Are there any legal considerations I need to keep in mind before filing a petition?
Yes. Anyone filing a petition to be appointed a guardian or conservator should be aware that in the event their action fails, they cannot re-file for another two years absent a substantial change in the circumstances or condition of the named loved one.
Is it necessary to retain the services of an attorney before taking this step?
While state law does not require a person to retain an attorney before filing the petition to be appointed a guardian or conservator, there are judges in certain counties who will not allow the action to proceed in the absence of legal representation on the part of the filer. That’s largely because of the complex nature of the proceedings, which will include presentation of evidence and the taking of testimony.
We will continue to examine this topic in future posts.
If you have questions about guardianships and conservatorships, or other estate planning matters, please consider speaking with an experienced legal professional as soon as possible.
Kevin Tharpe
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