When a person becomes unable to manage (take care of) himself/herself and/or his/her person due to physical infirmities and/or mental illness, or other medical reasons, it often becomes necessary for someone else to obtain legal authority to make routine decisions for that person, including how and where that person lives, who cares for that person, what kind of medical treatment is administered, how monies are managed, invested and spent, and the like. This process is labeled a “guardianship proceeding,” and works as follows:
Once it is realized that an individual (referred to as an “incapacitated adult” and “proposed Ward”) is in need of someone to provide care and make health and financial decisions on their behalf, a petition for the establishment of a guardianship and/or conservatorship is filed in the County in which the proposed Ward resides or is located at the time the petition is filed. As a threshold matter, the petition must state all of the applicable requirements mandated as a matter of law, including the identification and notification of all of the proposed Ward’s family, and the proposed Ward’s medical condition and financial status. Where these matters are unknown, or the specifics are not clear, the Court will often make arrangements and/or exceptions to production of this information. The Court will then appoint its own doctor to evaluate the proposed Ward, and report directly back to the Court. When this evaluation is returned to the Court indicating that a guardianship and/or conservatorship is necessary based on the proposed Ward’s condition, the Court will schedule a hearing, during which time the Court receives testimony about the proposed Ward’s condition, and information about the person who is proposed to be the Ward’s guardian and/or conservator. Upon such examination and consideration, the Court will then enter an order appointing a guardian and/or conservator of the Ward.
There are two (2) components:
“Guardian of the Person” indicates that the incapacitated adult is unable to manage himself or herself, and that therefore someone has been appointed to make all decisions regarding the Ward’s healthcare considerations, such as where the Ward lives, what type of care the Ward receives, what type of medical treatments and procedures the Ward obtains, and the like. A Guardianship over the Person encompasses all matters related to the Ward’s “person.”
“Conservatorship” indicates that the incapacitated adult is unable to manage himself or herself, and that therefore someone has been appointed to make all decisions regarding the Ward’s financial interests, including how monies are invested, how monies are managed, and how monies are spent. A Conservator is bonded for the amount of assets they manage, and reports to the Court at least annually. Additionally, there are a number of rules prescribed by applicable law regarding the management of these monies.
The Court does not always appoint both a Guardian of the Person and a Conservator. In fact, in many instances, the Court may appoint only one (1) of these positions, depending on the evidence in the case, and the medical evaluation.
In addition to the private practice of law, Mike Smith has served as the County Administrator and County Conservator for Gwinnett County, Georgia, since 1993, representing guardianships in legal and fiduciary matters. He currently represents over two hundred (200) conservatorships as the Conservator, providing both legal and fiduciary services. In addition, Mr. Smith represents individuals seeking to establish guardianships over family members and other incapacitated adults. Often, Mr. Smith is called upon to represent guardianship and conservatorship estates in an effort to minimize tax issues relative to the Ward’s estate.
If you wish to contact Mr. Smith about a guardianship or conservatorship matter, it will be helpful, though not mandatory, that you gather the following information: a list of assets and the aggregate approximate value; a list of debts and the aggregate approximate total; and, full legal names and addresses of the proposed Ward's spouse and children.
Andrew, Merritt, Reilly & Smith, L.L.P.
Seven Lumpkin Street
P.O. Box 1246
Lawrenceville, Georgia 30046
Phone (770) 513-1200
Fax (770) 513-1201