by Diane Weinberg

This video blog addresses some of the common questions I receive about guardianships and conservatorships. Please note that this information is specific to the state of Georgia. If you live in a different state, you may find it broadly informative, but you should consult an attorney in your state for the most appropriate counsel.

Diane Weinberg:
Hi, this is Diane Weinberg, Of Counsel with Morgan and DiSalvo, and I am coming to you from a very rainy afternoon in Sandy Springs, Georgia. I am here in my virtual office. Many of you may know, I do work virtually most of the time, and isn’t it lovely? We will pretend it looks this neat, clean and uncluttered all the time. So welcome to my office, and I’m here today to talk to you about guardianship and conservatorship. And I’m going to start trying to address some of these issues that I see frequently that come into my office. And one of the first questions that that people have when they come in is what is a guardianship or conservatorship? So and so told me that I need one, and I don’t know what it is. So I’m here to find out what it is, and do I need one?

Diane Weinberg:
Now I’m going to give a talk right now that’s very specific to Georgia. So if you’re from another state and you’re listening to this video, please find it instructive and informative, but please go see counsel in your area to make sure it actually applies to you and your situation. Guardianships and conservatorships are very state specific, and while there are certain similarities, just because they have similar policies, it does not mean we’re going to be using the same languages. It does not mean we’ll be dealing with the exact same rights of the ward; the ward being the person who eventually ends up under the guardianship or conservatorship. In fact, the ward may not even be. You maybe have a different term in your state for a ward. So again, please consult somebody locally.

Diane Weinberg:
So guardianship and conservatorship are legal processes that involve a court’s removal of legal rights of an individual because that individual lacks the capacity to exercise those rights. It is considered an extreme measure and action of last resort. We typically use it when somebody has failed to do planning. When somebody’s plans have failed; they had plans for somebody to act on their behalf and that person wasn’t willing, wasn’t able, or maybe that person just never had the capacity to create a plan. We have somebody who was born with an intellectual disability, and they just never had the ability to assign anyone else the responsibility of caring for them. So typically a parent or another relative would step in and become that person’s guardian or conservator. Also because it’s an action of last resort and we are removing fundamental rights, in theory, guardianships and conservatorships should be limited to the removal of only those rights that are necessary to protect that individual. Now, that’s a theory. Typically, when a guardianship or conservatorship is granted, we see removal of all those individuals rights, all those rights that are available under the statute. But again, that’s not always, it doesn’t have to be that way, and the preference is, at least philosophically, it shouldn’t be that way.

Diane Weinberg:
Now guardianship and conservatorship are this different sides of the same legal coin in Georgia. Guardianship involves those personal rights. So we’re removing from those individuals the right to marry, very personal fundamental right, the right to consent to medical treatment. Interestingly, that person can still refuse medical treatment. That’s a different process if you want to force somebody to take medical treatment that they don’t want, but they lose the right to consent to medical treatment. They also lose the right to determine where they live, both physically, where they put their head to sleep at night, where their pillow goes, as well as the right to determine their legal residence, which is called their domicile. That’s where you get your mail, your driver’s license, where you pay your taxes. That’s your domicile, and that would be the guardian would then assume those rights.

Diane Weinberg:
A conservatorship involves the right to manage your finances. So it includes the right to buy, sell, or dispose or encumber, put a lien on, put a lien on property, like a mortgage on property. You would lose that right, as well as the right to enter into or conduct business or commercial transactions. Now both of them remove the right to make, modify, or terminate a contract. Both of them remove the right to allow the individual to revoke a revocable living trust that the individual may have created prior to the guardianship or conservatorship. And that individual would also lose the right to bring or defend a legal action brought in what’s called in law or an equity. Those are different types of legal actions. However, that person does retain the right to bring a legal action against their guardian or conservator. That right, that individual does retain.

Diane Weinberg:
Okay. So if you feel that somebody needs a guardianship or conservatorship, because they can’t manage their money anymore, and/or they can’t make decisions about where to live or understand what the doctor’s saying. So these are individuals, we would go to the court. In Georgia, we would go to the probate court, and generally it’s the probate court where that individual lives, but sometimes it’s the probate court where that individual is found. So they might be hospitalized in a different jurisdiction,. and we would have to show the court by what’s called a clear and convincing standard of evidence that somewhere above a preponderance of evidence, would you see in civil trials and beneath a beyond a reasonable doubt. It’s somewhere in the middle of those two standards. So we have to show the court with clear and convincing evidence that the individual lacks the capacity to make or communicate significant responsible decisions with respect to his health and safety or with respect to the management of her financial affairs.

Diane Weinberg:
Okay, that’s the legal term. Let’s go back and look at it really quickly. To make or communicate. To make, does that person have the capacity to input information, think about what it means, determine different outcomes, and make a decision based on those thoughts, that analysis, or has that person lost the ability to do that analysis. Does that person have the ability to make those decisions? Does the person have the ability to communicate those decisions? Sometimes we have people with medical conditions, they understand what’s going on, they just can’t tell you what they think. There’s been a disconnect. So if they can’t communicate those decisions, a guardianship or conservatorship would also be appropriate.

Diane Weinberg:
Now it’s significant responsible decisions. It’s not, “Well, they can’t choose what they want to eat anymore,” or it’s can they make a big decision? If the doctor comes in and says, “You need treatment, and this is what I recommend, but this is another option,” can this person evaluate what those options are? Do they understand to ask the questions? Do they understand to just input the information and see what those differences are? If that person can’t make a significant, responsible decision, they can’t make it, they can’t communicate about it, then guardianship or conservatorship is appropriate. And again, we can limit the guardianship and conservatorship. We don’t have to remove all the rights. We can just ask for removal of some of the rights, and I’ve done that as well. But the goal is to keep that person as independent as possible, to that person should retain as many rights as that person is able to retain, as well as to live safely. We want to make sure that individual is protected.

Diane Weinberg:
So thank you at this point for taking time to listen to me today. Again, this is Diane Weinberg. I am Of Counsel with Morgan and DiSalvo. If you have any questions about this or something related to guardianship or conservatorship, feel free to reach out to me or another attorney at Morgan and DiSalvo. our number is (678) 720-0750. Again, (678) 720-0750. Thanks again for your time. Have a great day, and I look forward to speaking with you again very soon.

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