4001 Rights of Ward

Georgia State Seal

Georgia Division of Aging Services
Public Guardianship for Adults Manual

Chapter:

4000 Safety of the Person Under Guardianship

Effective Date:

03/01/2022

Section Title:

Rights of Ward

Reviewed or Updated in:

MT 2022-02

Section Number:

4001

Previous Update:

MT 2019-02

Summary Statement

The Department of Human Services (DHS) Division of Aging Services (DAS) adheres to Georgia law in maintaining the rights of persons under guardianship.

Rights Of Person Under Guardianship

Rights of persons under guardianship, as defined in Georgia law include:

O.C.G.A. §29-4-20. Rights of the person under guardianship; impact on voting and testamentary capacity.

  1. In every guardianship, the person under guardianship has the right to:

    1. A qualified guardian who acts in the best interest of the person under guardianship

    2. A guardian who is reasonably accessible to the person under guardianship

    3. Have the person’s property utilized to provide adequately for the person’s support, care, education, health and welfare

    4. Communicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction

    5. Individually, or through the person’s representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the person under guardianship is being unjustly denied a right or privilege granted by this chapter and Chapter 5 of this title and including the right to bring an action to modify or terminate the guardianship pursuant to the provisions of Code Sections 29-4-41 and 29-4-42

    6. The least restrictive form of guardianship assistance, taking into consideration the person’s functional limitations, personal needs, and preferences

    7. Be restored to capacity at the earliest possible time.

  2. The appointment of a guardian is not a determination regarding the right of the person under guardianship to vote.

  3. The appointment of a guardian is not a determination that the person under guardianship lacks testamentary capacity.

Letters of Guardianship or other orders of the court may give the person under guardianship additional rights. An appointment of a guardian is not automatically a determination of the right of the person under guardianship to vote and is not a determination that the person under guardianship lacks the capacity to make a will (testamentary capacity).

The Department of Human Services (DHS), as guardian of last resort shall become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health; pursuant to O.C.G.A. § 29-4-22 (b.2).

Rights Removed

  1. Unless the court’s order specifies that one or more of the following powers are to be retained by the person under guardianship, the appointment of a guardian shall remove from the person under guardianship the power to:

    1. Contract marriage

    2. Make, modify or terminate other contracts

    3. Consent to medical treatment

    4. Establish a residence or dwelling place

    5. Change domicile

    6. Revoke a revocable trust established by the person under guardianship

    7. Bring or defend any action at law or equity, except an action relating to the guardianship.

  2. The mere appointment of a guardian does not revoke the powers of an agent who was previously appointed by the person under guardianship to act as an agent under a durable power of attorney for health care or health care agent under an advance directive for health care.

Least Restrictive Environment

A person under guardianship has a right to the least restrictive form of guardianship assistance considering the person’s functional limitations and disability, personal needs, preferences, and values.

The guardian must also balance the rights with health and safety issues facing the person under guardianship.

DHS representatives are encouraged to consult with the Division of Aging Services State Office for advice on utilizing resources for assessment available to the Department, as an entity. It is important to assess disability issues, language access, program resources, health and safety issues, and compliance with federal and state laws and regulations through consultation with supervisors, the Public Guardianship Office, and the Division State Office.

References

O.C.G.A. § 29-4-20