Deciding the Need for Guardianship

Georgia Estate Planning attorney Mark Biernath and Cobb County Probate Judge Kelli Wolk go over the factors to consider when deciding if guardianship is the best choice for your special needs individual and yourself.

Mr. Biernath: As an attorney, I have to make some certain disclosure and legal disclaimers, as does Judge Wolk. This meeting is for educational purposes only and does not constitute legal advice. I can’t emphasis that enough. This kind of a presentation does not substitute for sitting down with an attorney to be able to discuss what your particular situation is and how the laws would affect you specifically. Were going to talk in general terms hopefully give you some information that will help you make decisions concerning your particular situation. But don’t go out and say well the lawyer said I didn’t need to do this and the lawyer said I need to do this. And also any opinion expressed here are not the official opinions of any state or county, agency or organization. Does that cover you?

Judge Wolk: Thank you!

Mr. Biernath: Good!

Mr. Biernath: I want to kind of put all this into context. As a lawyer and as Judge Wolk will share, we get to see a lot of the things that go wrong or things that run into problems. You have to look at your family situation, look at what’s possible. What’s the realm of possibilities? Then you kind of narrow it down to what’s probable. What things are likely to occur in our family situation? And then of course you have to address the things that are inevitable. But some of the factors to consider are when you’re looking at your child, your individual with special needs that you’re concerned about, one factor is intellect. But that is only one factor. It is not conclusive one way or the other. Another factor to consider is what’s their behavior? You might have an individual who has high intellect, perhaps a 120 IQ, but their behavior consistently and regularly puts them in harms way or demonstrates an inability to make the types of decisions you need to be able to make. Then you also have to look at what opportunities does this person have. Are they out in the community regularly where they might get into trouble? Or they always in a supervised situation where you know there never going to be exposed to some body that might take advantage of them and things like that. So you look and this is just 3 of the factors. There’s no laundry list of these are the things you can see and if you can check off all these different things then yes you need a guardian, if you don’t check off those things then no you don’t need a guardian. That’s why we have people like Judge Wolk. The law requires that a real life person decide can this person make or communicate significant responsible decisions or not. You have to look at what actually happens. And Judge Wolk, when it comes to making decisions about whether some body needs a guardian or not we can always factor into: well people make bad decisions every day. What are some of the things that might play into whether this person needs a guardian or they’re just making bad decisions.

Judge Wolk: If I got to put a guardianship on every body who made bad decision then everybody who smokes would have a guardianship! That is a proven scientific bad decision. Any body who’s smart would not smoke under the bad decision rule. So what we look at is someone who is making incompetent or uninformed decisions. So if you have some body who is not eating, are they on a diet, are they acting out in some way using food or are they in capable of making appropriate decisions about food because for example they have dementia and they forget to eat, not an intentional decision not to eat. That is the distinction. Is it a bad decision, drug addicts make bad decisions all the time, or this is a competency issue. Do they understand what they are doing and the ramifications of those actions?

Mr. Biernath: So often times, while it’s not a legal requirement that you show why they are making bad decisions. It helps the court make a decision whether this person needs a guardianship or not. If you can point to a reason and often times a diagnosis of some sort helps support that reason why they can’t make a good decision. Simply being a teenager or early twenties, they might not make good decisions, but that alone is not a reason that they need a guardianship.

Judge Wolk: And generally one of my first questions is why are you filing this now? Whether they are 17 and fixing to be an adult and they’ve got developmental problems or their 80 years old and they have dementia and they’ve got challenges from that. So ask your self that question. Why would I be doing a guardianship now? What do I need to do? What do they need help with?