By Rockdale Probate Judge Clarence Cuthpert, Jr.
Guardianships can take away a person’s rights to decide to marry, make contracts, consent to medical treatment, and establish a residence. Conservatorships allow the appointee to manage the ward’s finances and assets, buy and sell property, and enter into business and commercial transactions. Both the guardianship and conservatorship can also take away a person’s right to bring and defend actions in court. There are several other, less intrusive ways to act on behalf of someone with diminished mental or physical capacity. One or more of the following alternatives may serve the needs of an incapacitated adult without unnecessarily limiting his or her rights and freedoms.
A petition for a temporary medical consent guardian is one option to a traditional guardianship. If, based upon the facts presented in the petition, the court determines that there is probable cause to believe that the proposed medical consent ward is in need of a temporary medical consent guardian immediately, and after all of the preliminary steps have been completed including holding a hearing, the court may appoint a temporary medical consent guardian. The temporary medical consent guardianship shall terminate on the earliest of the court’s removal of the temporary medical consent guardian, the effective date of the appointment of a permanent guardian, the duration of the current hospitalization of the medical consent ward or a substantially continuous stay in another health care facility, or sixty (60) days from the date of appointment of the temporary medical consent guardian.
A Durable Power of Attorney (“DPA”) is another option that allows a competent individual to grant someone else the authority to make decisions regarding their finances and/or other issues pertaining to their personal affairs. It not only contains certain instructions, but also names an agent to make health care decisions in accordance with the instructions, and to enforce the person’s stated intentions. A DPA is broader in scope than a living will and applies any time a person becomes incapable of making or communicating health care decisions.
Georgia Advance Directives for Health Care combine a living will and Health Care Power of Attorney into one document. This document includes treatment preferences of the person signing the Directive and provides a clear understanding of how medical decisions should be made by the person to be appointed as guardian. This directive is executed in advance of incapacitation to be used when a person can no longer communicate their own wishes.
Georgia law regarding persons authorized to consent to surgical or medical procedures allow physicians to treat individuals who do not have the ability to consent. Inability of any adult to consent means a determination in the medical record by a licensed physician, after the physician has personally examined the adult, that the adult lacks sufficient understanding or capacity to make significant responsible decisions regarding his or her medical treatment, or the ability to communicate their decisions by any other means. After an individual’s inability to consent has been determined, the law allows for the next of kin to make important medical decisions without a guardianship.
A special needs trust is a particular kind of trust that can be established for the benefit of a person with a disability. The assets in this kind of trust can only be used in restricted ways, but they allow a person with a disability to have access to funds that might otherwise disqualify them from a variety of benefits programs. Because it allows for significantly more flexibility than a conservatorship, this option should be considered as well.
The information included herein is only intended to address some of the alternatives to guardianship and conservatorship and provide a basic understanding of the same. This information is not all inclusive, and should not be used as or considered to be legal advice.