Do I Need Guardianship?

Deciding whether to seek guardianship is one of the most challenging legal questions the parents of a child with special needs may face. While parents cannot begin the process of seeking guardianship until six months before their child turns 18, it’s helpful to give it careful thought long before then, with input from care providers and educators, if appropriate.

Guardianship is meant to protect the child, or ward, into and through adulthood—placing financial, medical, housing and other life decisions in trusted hands. The guardian, who is appointed with ward’s best interests in mind, helps care for the special needs individual, respecting his or her dignity and rights while managing the logistics of care, education and health.

What is Guardianship?

A parent’s right to make medical, legal and financial decisions for his or her child ends when the child turns 18. If you have a child with special needs, however, he or she may not be able to make these decisions alone. In Georgia, there are two main types of guardianship, though the same person often holds both roles:

  • Guardian—manages healthcare and medical decisions, housing and food
  • Conservator—manages finances, earnings and property

While anyone over 18 may petition for guardianship/conservatorship, parents or other family members often take on the role. Professional Guardians may also be appointed, in some circumstances.

Understandably, considering the seriousness of the process, it’s time consuming and often expensive to receive guardianship. When hearing a petition for guardianship, the court is making two determinations. First, whether the ward is incompetent to make “significant, responsible decisions.” Second, who is the best person to serve as a Guardian and/or Conservator.  It’s up to the petitioner to prove that the would-be ward is incapacitated to the extent that guardianship is necessary and that the proposed guardian is the best person to do the job.

The court expects regular updates to ensure that the ward is being cared for and properly represented. Shortly after the appointment, and then again annually, the guardian must file a personal status report, detailing, among other things, the ward’s condition and describing the ward’s housing over the past year. If a conservatorship is in place, financial decisions must be recorded and shared.

Deciding whether to seek guardianship is challenging, but if a special needs individual is unable to make critical decisions alone, it’s often necessary. Importantly, guardianship does not remove the individual’s own voice from conversations about his or her life and care. On the contrary, Georgia law stipulates that guardians should encourage wards, if they’re able, to participate in decisions. It’s also a guardian’s duty to keep the ward’s desires and values in mind, if they’ve been expressed.

Speak With an Atlanta Special Needs Lawyer

If you’re the parent or loved one of an individual with special needs, you’ll want help protecting his or her interests. At Nadler Biernath, we have experience seeking guardianship when it’s necessary. Call us today at 770-999-9799 to schedule your initial consultation to discuss how we can help your loved ones.


By | 2020-02-11T16:11:15+00:00 February 10th, 2020|Latest News and Events, Special Needs Trusts|0 Comments