1001 Introduction | PUBLIC-GUARDIANSHIP-5800-MANUAL

The Department of Human Services (DHS) serves as guardian of last resort for adults as provided by law when duly appointed by a probate court pursuant to Guardians of Adults, Chapter 4, Title 29 of the Official Code of Georgia, at O.C.G.A. §29-4-1, et seq.

The Georgia Department of Human Services Division of Aging Services (DAS) is the State Unit on Aging pursuant to the federal Older Americans Act. It has organizationally been assigned public guardianship case management duties for adults. DAS has specifically assigned guardianship case management duties to the Public Guardianship Office (PGO) within DAS.

This manual seeks to define the unique role assigned by Georgia law for those adults who have no one qualified, suitable or available to serve as a guardian.

From 1974 and until July 1, 2005, various individuals, divisions, and offices of the Department of Human Resources (what is now the Department of Human Services) performed guardian of last resort functions. In 1974, the Commissioner of the Department of Human Resources served in this capacity.

Subsequently, in 1979, the directors of the county Department of Family and Children Services (DFCS) offices of the Division of Family and Children Services served as guardian of last resort for incapacitated adults.

Adult Protective Services was created in 1981 and organizationally assigned to the county DFCS directors and under their supervision, performed guardianship duties and functions for county DFCS directors.

The transfer of Adult Protective Services from the Division of Family and Children Services to the Division of Aging Services and the restructuring of DFCS in 2004, led to the Department requesting legislative changes for guardian of last resort. Effective July 1, 2005, with the enactment of HB 394, Committee Substitute, the Georgia General Assembly removed county DFCS directors as guardians of last resort and designated the Department of Human Resources as the entity to serve in that capacity. The Division of Aging Services was primarily assigned public guardianship oversight and case management on behalf of the Department of Human Resources. The Division’s Adult Protective Services Section was primarily assigned case management duties.

Effective July 1, 2009, with the enactment of HB 228, the Department of Human Resources was restructured and renamed the Department of Human Services (DHS). The Division of Aging Services remained within DHS.

Effective January 1, 2011, the Division of Aging Services separated the case management functions for guardianship clients from that of Adult Protective Services and created the Public Guardianship Office.

Guardianship and conservatorship are judicial procedures, primarily handled in probate court, to intervene in the life and affairs of persons who need help and protection in using and controlling their person and their property. The Guardianship Law and procedures are found in "Guardians of Adults", Chapter 4, Title 29 of the Official Code of Georgia, at O.C.G.A. g 29-4-1, et seq.

Published in April 2005, Wards of the State: A National Study of Public Guardianship, is the first major national study of public guardianship since the seminal publication, Wards of the State: A National Study of Public Guardianship, Teaster, P., S., Wood, E., Hurme, S., et al., American Bar Association and the University of Kentucky (April 2005). [Public Guardianship and the Elderly, Winsor Schmidt (1981)].

In the 2005 study, public guardianship is defined as 'the appointment and responsibility of a public official or publicly funded organization to serve as legal guardian in the absence of willing and responsible family members or friends, or in the absence of resources to employ, a private guardian. Since the 1960s, states and localities have developed a variety of mechanisms to address this "unbefriended" population, often serving as "guardian of last resort."

Guardianship is a last resort. As mandated by guardianship law, lesser restrictive alternatives and interventions to guardianship are pursued prior to the probate court’s decision to appoint a legal guardian. If a guardianship is necessary, a qualified individual or public guardian should be appointed only when no other person is available to serve as the guardian for the person under guardianship. A guardian of last resort is appointed only when no other person is suitable and available to serve as the guardian.

The American Bar Association Commission on Law & Aging at www.abanet.org/aging and Karp, Naomi and Wood, Erica, Incapacitated and Alone: Health Care Decision-Making for the Unbefriended Elderly, ABA Commission on Law and Aging (July 2003).