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Guardianship of Adults

The personal right to make decisions about living one's own life is taken for granted by most adults. Yet, inevitably, illness or disability may render some adults incapacitated during the course of their lives and thereby prevent them from making responsible decisions concerning their life or property. Guardianship is one means of substituting the judgment of another person for that of an incapacitated individual. Guardianship is a legal relationship created by a court when the judge appoints someone (a guardian) to make decisions for another person who has been proven to be incapacitated (a ward).

Types of Guardianship

There are two main types of guardianship: of the person and of the property. A guardianship of the person may remove from the incapacitated person the power to contract marriage, to make other contracts, to consent to medical treatment, to establish a residence, and to bring or defend an action in court. A guardianship of the property may remove from the ward the power to bring or defend actions in court, to make contracts, to buy and sell property, and to manage their business and financial affairs. Often, a court appoints one person as guardian of the person and the property.

Within these two main categories, a guardianship can be either permanent or temporary (called "limited in duration"). Also, a guardianship can be total (granting all powers) or the guardian's powers may be limited, with the ward retaining some powers that could have been removed. Georgia law is progressive in this regard, recognizing that not all incapacitated persons are incapacitated in the same manner and to the same degree. 

The law specifically requires that guardianships shall be "designed to encourage the development of maximum self-reliance and independence of the ward and shall be ordered only to the extent necessitated by the person's actual and adaptive limitations" OCGA 29-5-7(h). For example, just because a person does not possess the judgment to make contracts does not necessarily mean that he or she cannot decide where to live. Finally, a guardianship can be created on an emergency basis if there is an immediate, clear, and substantial risk of death, serious injury, illness or disease, or irreparable waste or dissipation of the person's assets.

Who Can Be A Guardian

Any person who is not a minor, is not incapacitated, or does not have a substantial conflict of interest can be a guardian. The law lists preferences, starting with a person chosen by the ward in writing prior to incapacitation. A court may pass over a preferred person for good cause. If a suitable person is not available, the director of the county Department of Family and Children Services may be appointed.

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