3004 Important Provisions in Guardianship Law

Georgia State Seal

Georgia Division of Aging Services
Public Guardianship for Adults Manual

Chapter:

3000 Case Management

Effective Date:

03/01/2022

Section Title:

Important Provisions in Guardianship Law

Reviewed or Updated in:

MT 2022-01

Section Number:

3004

Previous Update:

MT 2019-02

Purpose

The Department of Human Services Division of Aging Services adheres to Georgia law in executing Guardianship duties.

Georgia Code

In Georgia, all guardianships of adults are designed to encourage the development of maximum self-reliance and independence in the adult and are 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. O.C.G.A. §29-4-1(f).

Duties of a Guardian

The duties of a guardian are listed in O.C.G.A §29-4-22, as follows:

  1. Except as otherwise provided by law or by the court, a guardian shall make decisions regarding the support, care, education, health, and welfare of the person under guardianship. A guardian shalt, to the-extent feasible, encourage the person under guardianship to participate in decisions, act on the his or her own behalf, and develop or regain the capacity to manage the his or her personal affairs. To the extent known, a guardian, in making decisions, shall consider the expressed desires and personal values of the person under guardianship. A guardian shall at all times act as a fiduciary in the best interest of the person under guardianship and exercise reasonable care, diligence, and prudence.

  2. A guardian shall:

    1. Respect the rights and dignity of the person under guardianship;

    2. Become or remain personally acquainted with the person under guardianship and maintain sufficient contact with the person to know his or her capacities, limitations, needs, opportunities, and physical and mental health;

    3. If necessary, petition to have a conservator appointed;

    4. Endeavor to cooperate with the conservator, if any;

    5. Take reasonable care of the personal effects of the person under guardianship;

    6. Arrange for the support, care, education, health, and welfare of the person under guardianship, considering the needs and available resources of the person;

    7. Expend money of the person under guardianship that has been received by the guardian for the current needs for support, care, education, health, and welfare of the person under guardianship;

    8. Conserve for the person’s future needs any excess money of the person received by the guardian; provided, however, that if a conservator has been appointed for the person under guardianship, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the person’s future needs;

    9. Within 60 days after appointment and within 60 days after each anniversary date of appointment, file with the court and provide to the person under guardianship and to the conservator; if any, a personal status report concerning the person under guardianship, which shall include:

      1. A description of the general condition, changes since the last report, and needs of the person under guardianship

      2. All addresses of the person under guardianship during the reporting period and the living arrangements of the person under guardianship for all addresses

      3. A description of the amount and expenditure of any funds that were received by the guardian pursuant to paragraph 7 of this subsection

      4. Recommendations for any alteration in the guardianship order;

    10. Promptly notify the court of any change in the condition of the person under guardianship that in the opinion of the guardian might require modification or termination of the guardianship;

    11. Promptly notify the court of any conflict of interest between the person under guardianship and the guardian when the conflict arises or becomes known to the guardian and take any action as is required by O.G.C.A § 29-4-24;

    12. Keep the court informed of the guardian’s current address.

Refer to section 4056 of this manual for additional information on personal status reports.

Other Powers Granted to the Guardian

Additional powers that guardians may exercise, unless prohibited by the court’s order, are found at O.C.G.A. § 29-4-23(a), which states:

  1. Unless inconsistent with the terms of any court order relating to the guardianship, a guardian may:

    1. Take custody of the person of the person under guardianship and establish the person’s place of dwelling within this state;

    2. Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent law, give any consents or approvals that may be necessary for medical or other professional care, counsel, treatment or service for the person under guardianship;

    3. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the person under guardianship in the name of or on behalf of the person under guardianship;

    4. Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health and welfare of the person under guardianship.

Powers That Must Be Specifically Granted in the Court Order

O.C.G.A. §29-4-23(b) lists powers that are not automatically granted in all guardianships. The authority listed below must specifically requested of the Court and specifically in the court’s order if or when granted.

(a) At the time of the appointment of the guardian or at any time thereafter, any of the following powers may be specifically granted by the court to the guardian upon such notice, if any, as the court shall determine, provided that no disposition of the property of the person under guardianship shall be made without the involvement of a conservator, if any:

  1. To establish the person’s place of dwelling outside this state;

  2. To change the jurisdiction of the guardianship to another county in this state that is the county of the person’s place of dwelling, pursuant to O.C.G.A § 29-4-80;

  3. To change the domicile of the person under guardianship to the person’s or the guardian’s place of dwelling, in the determination of which the court shall consider the tax ramifications and succession and inheritance rights of the person under guardianship and other parties;

  4. To bring an action for the divorce of the person under guardianship based on any of the grounds listed in O.C.G.A. § 19-5-3, except on the ground that the marriage is irretrievably broken;

  5. To consent to the adoption of the person under guardianship;

  6. To receive reasonable compensation from the estate of the person under guardianship for services rendered to the person under guardianship; and

  7. If there is no conservator, to disclaim or renounce any property or interest in property of the person under guardianship in accordance with the provisions of O.C.G.A. § 53-1-20.

Considerations for Granting Specific Powers

The court must consider a list of factors before the optional powers above can be granted. The list is found at O.C.G.A. §29-4-23(c) through (e).

  1. Before granting any of the powers described in subsection (b) of this Code section, the court shall appoint a guardian ad litem for the person under guardianship.

  2. In granting any of the powers described in subsection (b) of this Code section, the court shall consider the property rights of the person under guardianship and the views of the conservator, if any, or, if there is no conservator, of others who have custody of the persons property.

  3. In performing any of the acts described in this Code section, the guardian shall act in coordination and cooperation with the conservator or, if there is no conservator, with others who have custody of the person’s property.

Department of Human Services as Guardian

The final order of the probate court will specify powers of the guardian. If powers described in O.C.G.A. § 29-4-23(b)(4)–(7) are granted in the final order or any subsequent order, consult with the Public Guardianship Office management via supervisory channels.

References

O.C.G.A. § 29-4-1(f); O.C.G.A. § 29-4-22; O.C.G.A. § 29-4-23