End-of-life planning can involve many considerations, from property to healthcare to funeral plans. It can also involve guardianship.
A guardian is a person appointed by the court who has control and authority over another, called a ward. A guardian is responsible for the ward’s healthcare, housing, and property decisions.
Guardians can be appointed for minor children, older adults, and adults with special needs. In some instances, you may find that you need to choose a guardian as part of your end-of-life planning.
Each state has its own laws regarding guardianship. If you live in Georgia, this article is for you. Here we will discuss how guardianship works in Georgia for children and families.
Jump ahead to these sections:
- What Types of Guardianship Exist in Georgia?
- Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Georgia?
- What Forms Do You Need to File for Guardianship in Georgia?
- How Do You File for Guardianship in Georgia?
- How Do You Assign a Guardian for a Minor Child in Georgia?
- How Guardianship Works for Minor Children
- How Guardianship Works for Older Adults
- How Guardianship Works for Adults With Developmental Disabilities or Special Needs
If you have questions about guardianship after reading this article, then you should contact an experienced guardian attorney. They can answer your questions and explain your options, including alternatives to guardianship.
What Types of Guardianship Exist in Georgia?
Georgia recognizes many different types of guardianship. Guardians can be appointed by the court for both minors (children under 18 years of age) and adults.
Guardianship for minor children
Georgia recognizes the following types of guardianships for minor children:
- Natural guardians are parents.
- A standby guardian is named by the parent or current guardian pending health issues.
- A testamentary guardian is an individual named to be the guardian in a parent’s will.
- A temporary guardian is appointed by the probate court to be the guardian for a child for a limited period of time.
- A permanent guardian is appointed by a probate court to be the guardian of a child.
Guardianship for adults
An adult guardianship may be either full or limited. Additionally, the guardianship can be either permanent, temporary, or emergency. All of these types of guardianship will be discussed in more detail below.
If you have questions about whether or not a guardianship is necessary and, if so, what type is appropriate, contact an experienced guardianship attorney. They can answer your questions and advise you regarding your guardianship options.
Who Are the Default Guardians for Minor Children, Older Adults, or Adults With Special Needs in Georgia?
Guardians are appointed by the court. As such, there are no default guardians in Georgia.
Older adults and adults with special needs are considered adults. This means that as adults they are considered responsible for their own decision making. In order for an adult to have a guardian, someone must petition the court to be appointed their guardian.
While there is no default guardian, in Georgia courts may give a preference when selecting guardians.
What Forms Do You Need to File for Guardianship in Georgia?
A proposed guardian files different forms depending on whether the guardianship is for a minor or an adult. The Council of Probate Court Judges of Georgia provides standard forms and general instructions for the public.
Minor child
To apply for temporary or permanent guardianship of a minor you must file a petition with the probate court. The petition will require certain forms and documentations to be attached depending on the type of guardianship sought and the specific situation. For example, if either of the parents are deceased then the petition will need to include a copy of the parent’s death certificate.
Adult
To apply for guardianship of an adult, a petition must be filed with the probate court. The petition will require certain forms and documentations to be attached. The petition must be filed by either:
- Two individuals having knowledge of the pertinent facts
- One individual together with an affidavit of a physician, psychologist, or licensed clinical social worker who has examined the proposed ward
How Do You File for Guardianship in Georgia?
In Georgia, the probate court grants guardianship. This means that if you are requesting guardianship in Georgia, you must file the appropriate forms with the appropriate probate court. The appropriate forms include the petition for guardianship as well as any necessary attachments.
For a minor, the petition for guardianship must be filed in the county where the minor lives or where the proposed permanent guardian lives. For an adult, the petition for guardianship must be filed in the county where the proposed ward lives or is currently located.
The proposed guardian will also have to pay filing fees along with the petition.
How Do You Assign a Guardian for a Minor Child in Georgia?
Guardians are appointed by the court, they are not assigned. In some situations, it is possible for a parent to name a guardian for their minor child. These types of guardianship will be discussed in the next section.
How Guardianship Works for Minor Children
There are different types of guardianships for minor children in Georgia.
Natural guardian
Parents are a child’s natural guardian, unless the parents are divorced. If one parent has sole custody, that parent is the sole natural guardian. If both parents have joint legal custody, then both parents are natural guardians.
Standby guardian
In 2002, Georgia passed the Standby Guardianship Act. Under the Standby Guardianship Act, a parent or legal guardian of a minor child can “sign a document designating another person to act as a standby guardian for the minor in the event the parent or legal guardian, due to his or her mental or physical condition, becomes unable to care for the minor.” The document must follow the form and include the information required by the Standby Guardianship Act.
If “a physician or licensed nurse practitioner makes a written determination that a parent or legal guardian who signed such a designation has in fact become unable to care for the minor by virtue of a physical or mental condition, the standby guardianship is activated.” The standby guardian must then file certain forms with the probate court. The standby guardianship automatically expires four months after the health care determination.
Testamentary guardian
In Georgia, a parent may nominate a testamentary guardian for their minor child in their will. Georgia law provides the following:
- Unless the minor has another living parent, upon probate of the minor's parent's will, letters of guardianship shall be issued to the individual nominated in the will who shall serve as testamentary guardian without a hearing provided that the individual is willing to serve and no objection is filed.
Notice of the testamentary guardianship must be provided to the minor child's adult siblings and grandparents. If the child does not have adult siblings or grandparents, then notice must be provided to the child’s great-grandparents, aunts, uncles, great aunts, or great uncles.
Temporary guardian
A temporary guardian is appointed by the court to care for the child and their needs. The minor child must live with the guardian.
A temporary guardianship requires both parents to relinquish their parental rights during the life of a guardianship. It does not permanently terminate the parental rights of the parents. A temporary guardianship will not be granted if the parents object.
Permanent guardian
A permanent guardian is appointed by a probate court to be the guardian of a child. A petition for permanent guardianship may be filed when the minor does not have any of the following:
- Natural guardian
- Testamentary guardian
- Permanent guardian
Unlike a temporary guardianship, parents do not have rights or responsibilities in permanent guardianship.
How Guardianship Works for Older Adults
In Georgia, “[t]he court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.”
A guardianship can limit an adult’s ability to do the following:
- Enter into contracts (including marriage)
- Consent to medical treatment
- Establish a residence
- Bring and defend an action in court
Keep in mind that Georgia law requires that all guardianships be "designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult's actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.”
Full guardianship
A full guardianship is the most restrictive type of guardianship. It gives the guardian complete control.
Limited guardianship
A limited guardianship is just how it sounds. It limits the guardian’s rights and responsibilities and gives the ward some autonomy over certain aspects of their life.
Permanent guardianship
A permanent guardianship is an ongoing guardianship that does not have a specified end date.
Temporary guardianship
A temporary guardianship, unlike a permanent guardianship, is for a limited time period. This time period is specified in the court order.
Emergency guardianship
It is also possible to have an emergency guardian appointed by the court. An emergency guardianship can be created if there is an immediate and substantial risk of any of the following:
- Death
- Serious physical injury
- Illness
- Disease
The emergency guardianship also lasts for a limited period of time.
How Guardianship Works for Adults With Developmental Disabilities or Special Needs
In Georgia, an adult has rights and responsibilities regardless of age (once they have reached 18), developmental disabilities, or special needs. This means that in order for the court to appoint a guardian for an adult with developmental disabilities or special needs, the proposed guardian will have to petition the court to declare that the adult lacks sufficient capacity to make their own decisions. The process for guardianship and the types of guardianship available are the same for all adults.
In Georgia, there are many alternatives to guardianship for adults with developmental disabilities or special needs. There are numerous resources in Georgia that can provide additional information on these alternatives.
Frequently Asked Questions: Guardianship in Georgia
If you are exploring guardianship options in Georgia, then it is natural to have questions. Rest assured that you are not the first person to have questions about the guardianship process. Below we will answer frequently asked questions about guardianship in Georgia. If you have additional questions or concerns, you should contact an experienced guardianship attorney licensed to practice in Georgia.
How long is temporary guardianship in Georgia?
In Georgia, the guardianship of a minor terminates when any of the following occur:
- The minor reaches the age of 18
- The minor is adopted
- The minor is emancipated
- The minor dies
- A court order terminating the guardianship is entered
The temporary adult guardianship is a guardianship of limited duration. The court order may specify the duration of a temporary guardianship. It terminates automatically upon the death of the ward.
What’s the difference between guardianship, conservatorship, and custody in Georgia?
Guardianship, conservatorship, and custody are all legal terms regarding the relationship of one individual to another.
As we have discussed, guardianship grants a person (or persons) custody and control over another. Conversely, a conservatorship grants a person custody and control over another’s property. In Georgia, a conservatorship can take away an adult’s power to:
- Buy property
- Sell property
- Manage their own business affairs
- Manage their own personal finances
It is possible for an individual to need both a guardian and a conservator or just one of the two.
In Georgia, there are two types of custody with regard to minor children: legal and physical. Legal custody means the parent has the right to make major decisions regarding the child’s care and welfare. Physical custody refers to where the child lives. In Georgia, superior courts handle most custody matters.
Can you get guardianship without going to court in Georgia?
A guardian is appointed by the court. Thus, most guardianships in Georgia require that the potential guardian file the appropriate forms with the court.
However, under Georgia law, each parent of a minor is a natural guardian.
Is Guardianship Right for You?
If you live where the peaches grow, then you know that you have a lot of guardianship options. These options vary based on whether the proposed ward is a minor or adult.
End-of-life planning is about understanding your wants and needs and creating a plan to meet those wants and needs. This plan may include guardianship or alternatives to guardianship. Ultimately, only you can decide if guardianship is right for you.