1002 Appointment and Authority | PUBLIC-GUARDIANSHIP-5800-MANUAL
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Georgia Division of Aging Services |
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Chapter: |
1000 Overview |
Effective Date: |
03/01/2022 |
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Section Title: |
Appointment and Authority |
Reviewed or Updated in: |
MT 2022-01 |
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Section Number: |
1002 |
Previous Update: |
MT 2019-02 |
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Summary Statement
The Department of Human Services (DHS) serves as guardian of last resort, when appointed by the Probate Court pursuant to O.C.G.A. § 29-4-3(b)(1).
Appointment
Pursuant to O.C.G.A. §29-4-1 ”The court appoints 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.” The Department of Human Services serves as guardian of an adult when there is no one qualified, suitable and available to serve.
Guardianship experts refer to this as "guardian of last resort." Under Georgia law, "guardian" is what was formerly called "guardian of the person." The Department is appointed as an entity.
The Department is not statutorily authorized to serve as a conservator.
Alternatives to public guardianship should be pursued through the court to ensure the continued protection and preservation of the rights of the person under guardianship. Alternatives may include appointment of a successor guardian or restoration of the person’s rights.
The probate court determines the guardian pursuant to O.C.G.A. § 29-4-3.
Georgia law provides an order of preference in the selection of guardians, as follows:
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The individual last nominated by the adult
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The spouse of the adult or an individual nominated by the adult’s spouse
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An adult child of the adult or an individual nominated by an adult child
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A parent of the adult or an individual nominated by a parent of the adult
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A guardian appointed during the minority of the adult
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A guardian previously appointed in Georgia or another state
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A friend, relative or any other individual
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Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment
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The county guardian
Types of Guardianship Appointments
The type of guardianship the court appoints depends on the immediacy of need and the expected duration. Types of appointment include:
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Temporary Guardianships
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Pre-Hearing Emergency Guardianships
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Emergency Guardianships
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Special Jurisdiction Guardianships
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Temporary Substitute Guardianships
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Permanent Guardianships
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Successor Guardianships
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New Guardianships
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Alternatives to Guardianship
Alternatives to Guardianship may include the following:
Representative Payee
A representative payee helps Social Security Administration beneficiaries who need assistance in managing their benefits. A representative payee’s responsibilities include:
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Using benefits to pay for the current and foreseeable needs of the beneficiaries
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Appropriately saving any remaining benefits
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Keeping good records of how the benefits are spent
Case/Care Management
Case/care management includes support programs and services for someone who may not be fully incapacitated. Their needs may be met without turning to formal legal means. Arranging extra help such as bill paying services, financial counseling and in-home support may keep a person independent.
Health Care Surrogacy
The designation of another individual to act on one’s own behalf in the event that one is determined to be incapacitated; to provide informed consent for medical treatment and diagnostic procedures.
Trust
A “living trust” is a revocable trust set up during one’s life to control and manage property and affairs. One may be his or her own trustee or co-trustee, but if incapacitated, the trust terms provide for a successor trustee or allows for the co-trustee to serve alone. No court action is needed; there is a seamless transition and privacy is maintained.
Durable Powers of Attorney
There are two types of durable power of attorney:
For Property (DPA): A document that allows the principal to give authority to another person (agent or attorney-in-fact) to make financial/legal decisions and financial transactions on one’s behalf. It is called “durable” when, by its terms, it remains in effect even if the principal becomes mentally incompetent.
For Health Care (DPAHC): An advance directive that allows the principal to appoint a health care agent, also known as an attorney-in-fact, a proxy or surrogate, to make health care decisions in the event that one can no longer speak for him- or herself. Laws governing directives vary from state to state. Some states consolidate the DPAHC with other advance directives.
Georgia Medical Consent Law
In an emergency, the law allows physicians to treat anyone who is incapable of giving informed consent. In all non-emergency situations, the next of kin may consent if the patient is unable to do so. The Georgia Medical Consent Law lists the persons who may consent to medical care for another. Guardianship may not be necessary to consent to medical treatment, unless there is a dispute among those persons who have equal voice under the law.
Authority
O.C.G.A. § 29-4-3(b.1) provides that the Department of Human Services may be appointed as guardian of last resort.
Additionally, O.C.G.A. §29-4-2(a) distinguishes the Department of Human Services and public guardians as exceptions to the requirement that an individual must be appointed as guardian. The Department, when appointed, serves as an entity. No individual case manager or employee is to be appointed or named as guardian.
The DHS assumes the role of “guardian” based on Georgia law.
The DHS representative shall take the “Oath of Guardianship” and obtain the “Letters of Guardianship” from the court.
When appointed by the court, the guardian shall be listed as the “Department of Human Services” or the “Georgia Department of Human Services”.
The DHS representative, acting on behalf of the Department as guardian, is fully authorized to exercise all the powers and duties of the guardianship from the date of the Letters of Guardianship.
All guardianship authority ends when:
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The department is no longer the appointed guardian (e.g. guardianship expires, individual rights are restored, or a successor guardian is appointed relieving the Department as guardian of last resort)
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Upon the person under guardianship’s demise
Case Management
DHS representatives who have been assigned with case management duties and responsibilities for public guardianship are the Public Guardianship Office (PGO) within the Division of Aging Services, and any Division of Aging Services staff as assigned specifically by the Director.
The Department or DAS may authorize any personnel of the Department to carry out the entity’s authority as guardian. The Division of Aging Services is primarily assigned public guardianship oversight and case management on behalf of the Department of Human Services when appointed as guardian.
Responsibility for activities related to case management and meeting the guardianship client’s basic needs shall be assigned to a responsible employee, contractor or volunteer of DHS.