Basic Requirements of Filing A Guardianship/Conservatorship

Georgia Estate planning attorney Mark Biernath and Cobb County probate Judge Kelli Wolk address the requirements for filing a guardianship and/or conservatorship.

Mr. Biernath: Something I wanted to point out for emergency and non emergency is that for the emergency, it is for 60 days. At the end of 60 days it automatically dissolves. So often times you may end up having to file at the same time you’re having to file your emergency as you are filing your permanent one also. And no you don’t get a discount on the price!

Judge Wolk: They used to have a combine petition and they did some revision and stuff to the code and they changed that.

Mr. Biernath: And the reason they changed it is that people were waiting too long, waiting for emergencies and then running down to court and the probate judges said, “These people should have been here long before this emergency”. And that is why the state legislator actually took away that combined petition. And I used to tell people, “Wait until there’s a problem, within a week we can have that guardianship then! And then at the end of 60 days it will automatically turn into a permanent.” Then about 6 years ago, maybe even longer, they took that option out. Now the legislator is saying “Look if you know you need to do it, do it. Don’t wait for a problem; don’t wait for a crisis to arise.” It was putting a big burden on the courts because the courts have to drop everything else,

Judge Wolk: Another thing is our cleverly named emergency emergency hearing, which is not a typo by Mr. Biernath. Technically it is a pre-hearing emergency. If there is something so egregious and so threatening to the proposed ward that they cannot wait three to five days then (if the circumstances support it) we can do a pre hearing emergency that will last only until there is time to do a hearing and it is typically limited to conducting certain things. If somebody had an accident and there needs to be discussion with doctors or there needs to be a transfer from one facility to another or there will be an eminent emergency threat to this person if they are not able to make these decisions, that’s the kind of thing that would allow for an emergency emergency hearing. I will tell that if you file a petition, the emergency emergency petition is on the emergency petition. So you file an emergency petition and within that there is a box that you check that says we need a pre hearing emergency guardianship because and you need to state facts. That petition (I just said a minute ago, you can file a petition with you, like mom and dad can file a petition, mom and pastor, or two people with knowledge can file a petition) has to come with a supporting affidavit from a medical doctor, psychologist, or licensed clinical social worker. Two lay petitioners cannot petition for a pre-hearing emergency.

Mr. Biernath: And that they are sticklers about.

Judge Wolk: Because it’s right there in the law!

Mr. Biernath: There’s no way around it. Even if it a non medical issue, a medical doctor of the two classes of people have to sign. And if they don’t initial the right paragraph, it aint going to happen, the judge can’t do it. Who can apply for a guardianship in Georgia? Any interested person can apply for either guardianship or conservatorship or both. You do not have to have any particular relation with the person you are seeking guardianship of. That surprises many people, many people think “Well I am Mom, I’m Dad, I’m the only one that can do this”, someone else can actually do this. And this has actually occurred where somebody was living in a personal care home and didn’t have a guardian. It got to the point where the personal care home needed to know who could make decisions and the family was saying we don’t want to do it. Well someone else had to step in and do it and that got the family all upset.

Judge Wolk: And you don’t have to be seeking to be pointed as the guardian or conservator. Like I can say “Probate judge in DeKalb county, Mark’s not doing well, he needs a guardianship. I don’t want to be it but I just thought should know”. Then the court will go through all of those steps analyzing and if he needs somebody then there are default people who are in place: the county guardian, the county conservators, who can serve in that capacity. Or if somebody steps up and says “Ok, I’ll do it” then that can happen. But you don’t have to be asking to be that person in order to file a petition, to try to protect someone who needs it.

Mr. Biernath: One thing I want to emphasis is that you do have to either two petitioners; two people have to allege that this person needs a guardian, or one person and a doctor’s affidavit. So one person can’t go to the court and fill out the papers and be guardian. Two people have to go down or two people have to complete the petition and submit that. Some times people are surprised when they go down to court to submit to file and they are told,”Nope you need one more person on here” and they are like “Who?”. Anybody that has in interest in the individual, anybody who has personal knowledge about that knowledge can be a petitioner.