Guardianship Terminology Explained

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk define the key terms of guardianships. 

Mr. Biernath: Who are all these different people we’ve been talking about? There’s the proposed guardian or conservator that is the person who is saying “I want to be the guardian, I want to be the conservator”. Not every petitioner do we know who wants to do that. So sometimes, as Judge Wolk mentioned, a petition is submitted saying this person needs a guardian, but I don’t want to be the guardian, I just want to let you know.   And actually when I was serving as the court appointed attorney for DeKalb County, a criminal defense attorney filed the petition. They had a client sitting in DeKalb county jail who was 98 years old and completely nonverbal but had done an act which wound him up in jail. The criminal defense attorney didn’t know what to do with him so he petitioned the court. The court did find that he needed a guardian; no body was there to be the guardian so the county guardian became the guardian. So now the county guardian was able to direct the defense attorney how to proceed. And they were actually able to negotiate at that point and get him into an appropriate facility. There is the proposed ward, and in this situation we are kind of assuming that this is your child or your loved one. The petitioner or petitioners, those are the people telling the court “Hey, we think this person needs a guardian”. Then there is the attorney that is appointed and Judge Wolk already addressed that. There will be at least one attorney there in that courtroom and that attorney does not represent you as the petitioner. That attorney represents the proposed ward and they have an ethical obligation to present to the court what the proposed ward wants them to present. Now if the proposed ward can’t tell the attorney what they want them to present then lawyers ethical rules kind of shift into what is in the person’s best interest. There is a potential that Judge Wolk would appoint a guardian ad-litem. And I don’t know the circumstances you might consider to appoint them.

Judge Wolk: Let me first explain the differences because this gets confused all the time. Lawyers don’t understand the difference in these two. A court appointed attorney is like, and I apologize for those who aren’t here for this situation, your child’s grandparents because the court appointed attorney does the legal equivalent of letting your kid eat cake and ice cream for dinner. They do whatever your kid wants. The guardian ad-litem is like your kids parent, they make them eat broccoli and protein and things that they need and what’s in their best interest. Attorney, what ever they want; Guardian ad-litem, whatever they need, best interest. So we appoint a guardian ad-litem when there is something that needs to be investigated and reported to the court to tell us what is in the best interest of this potentially protected person. We also do it when we are required to do it if for example there is an investment account and you want to continue investing in what’s not authorized by the law which is pretty conservative, if you want to sell property, if you want the authority to potentially move your child out of the state of Georgia (you can move them with in Georgia without additional power but if you want the additional power because you contemplate that you may have to move out of the state at some point and you don’t want to have to come back and ask for permission to move them out of the state). Any time you ask for additional authority under the law we appoint a guardian ad-litem and they investigate. But that’s what that [ad-litem] is. We can also appoint a guardian ad-litem to investigate if there is just something kind of hanky going on that just doesn’t feel right. We need somebody to let us know because I can’t take my robe off and go out and start asking questions to the social workers and people in the community.