Simplified Version of a Guardianship

Georgia Estate planning Attorney Mark Biernath and Cobb County probate Judge Kelli Wolk give a brief but informative summary of guardianship. They discuss the different types of guardianships, the fees to file, and what one will experience when in a guardianship hearing.

Mr. Biernath: Now the state does have a solution for you. Aren’t you glad, because we did just raise the tension level and now were going to give you the solution.

Judge Wolk: Now take a deep breath!

Mr. Biernath: There is a solution! And Judge Wolk, why don’t you cover some of this emergency, wait I’ll cover this stuff and you cover the emergency when we get to that stuff because that’s a little different. In Georgia, we have a thing called the Doctrine of Implied Consent. If you are in a car accident and rendering unconscious, doctors are permitted to assume that you want them to do everything possible to keep you alive. So that is the Doctrine of Implied Consent. Then there’s also a process of involuntary committal, I believe they are called 10-13 Admissions, basically if a doctor or I think a couple of other people can allege this, allege that if you are a danger to yourself or others they are permitted to hold you in a psychiatric care facility for up to 72 hours. If they want to hold you longer than 72 hours, they have to go before Judge Wolk or any of the other probate judges that are in that county and convince the judge that you are a danger to yourself or others. Then Judge Wolk can order an appropriate length of time to be held. We also have a law here in Georgia, OCGA 31-92, which authorizes certain people to consent on behalf of certain other people. And recently that law was amended to include parents and siblings of adults. The question seems to be though is that only applies in emergency situations; it does not apply to routine care and non acute treatment options.

Judge Wolk: This is where I do this every day. Everything you guys do everyday, I’m sure you’ve miss steps and make assumptions where your sure people know what your talking about, I know what I’m talking about and if I use words or acronyms or things, I want you say Woah!. There are 4 things that we will be talking about in guardianships: emergency guardianship over the person medical care, emergency conservatorship over the property, a permanent guardianship over the person, and a permanent conservatorship over the property. So when you are talking about an emergency guardianship and conservatorship, that’s one pleading, that’s one thing you come with when filing with us, one starting document. You need two people, either two family members or one family member one friend, or whatever or a person and a medical provider, who can be a doctor, psychologist, or a licensed clinical social worker who is licensed in Georgia, who says yes this person needs a guardianship and/or a conservatorship and here’s why. In a permanent petition, that process from a filing to a hearing (and there’s always a hearing) takes approximately four to eight weeks depending on which court you’re in, what time of year it is, how busy the court is, how difficult the scheduling of everything is. But you’re looking at a couple of months or less, usually. In an emergency guardianship, it is three to five business days. So if you file it on Friday you will have an emergency hearing before the next Friday. So you are looking at when you petition and you make your allegations, it is expensive. It is about $600 to file each one, an emergency or a permanent. It is about $600. There is a fee to the probate court for processing it. There is a fee for the court appointed evaluator, who is also doctor, psychologist or licensed clinical social worker licensed under Georgia law. That person will do an independent evaluation. So even if you have gotten your family doctor to say “Johnny needs a guardianship, he’s fixing to turn 18” we’re still going to send out an independent doctor. There were too many abuses where people were paying doctors to say things that they wanted them to say, so now there needs to be this independent appointment. We will also appoint the proposed ward, who in this circumstance generalizing your child, we will appoint them a court appointed attorney. We are appointing them a court appointed attorney because at the end of the day it is presumed that we will remove the right to marry, contract, own property, consent to medical treatment, refuse medical treatment, decide where they live, and a number of things. So they are entitled to representation. If all we were going to do is send you to jail and you can still own your property, get married and go on Mark’s dating websites then. If we are going to take all of those rights away from you we are certainly going to appoint a court appointed attorney for that person for that proceeding. That is those fees $125 and $175 go to those professionals, so that cost is rolled into that $600 filing fee. The probate court doesn’t get the whole $600. But all of that has to happen in an emergency guardianship within the 72 hours. You file and within 72 hours we have to have an evaluation done of the proposed ward, you can imagine how fun it is to find a doctor when someone files an emergency on a Friday afternoon! We get them evaluated and then we have a hearing, all within a business week. So it is a very rushed situation for our court and also for you because you’re going to have to with the physician or psychologist to arrange the evaluation and all of that.  And this is a doctor that makes a house call for $125 so you can imagine the selection we have, they’re great people who do this out of a passion and a community service but we are not having folks that are knocking down our door to do the services for us. Same thing with the attorney’s who are making a house visit and coming to a hearing for $175. On a non emergency basis you’re looking at a couple of months but you’re still looking at all of these pegs having to go into these holes making sure we’ve done everything that we are legally required to do. Then at the end of that there is a hearing, there will always be a hearing if you ever get a guardianship without a hearing then we need to know about it because someone is doing something wrong! I have actually heard of that! And sometimes the hearing will take 10 minutes, state your name, what is your relationship to the proposed ward, please tell me why we’re here today, what’s going on, what assets does he/she have, why do you think they are incapable of managing those assets, why do you think they are incapable of managing their healthcare, what types of behavior have they gone through, why are you doing this now, why is this necessary, have you encountered any difficulties, if you are appointed what is your plan? You stick in your answers in between those questions and that’s a pretty standard after you do your “Do you swear to tell the truth, the whole truth, so help you God”! After you do all that stuff, that’s pretty much what a guardianship proceeding is if there’s no contest. It doesn’t take long. We typically don’t bite! And we are trying to accomplish the same goal, which is protecting this person. It gets a little more complicated if there’s an objection or if there are some questions about the specifics and some judges seem nicer than some others. Some of us are rougher! But that from beginning to end, in a simplified Cliff Notes version, is a guardianship.