What The Courts Consider During Guardianship Proceedings 2018-12-20T20:03:42+00:00
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What The Courts Consider During Guardianship Proceedings

We’re going to talk toady about how to make decisions for adults who do not have the capacity to make the decisions for themselves. And, as lawyers, we get to see a lot of different things that are possible. There are a lot of horror stories, some of which I will share and Heather will share some as we go through this presentation. But I don’t want you to get paralyzed by everything that is possible. Because you can look at everything that is possible and it is easy to get overwhelmed. I don’t want this talk to make you fearful about everything that can happen. What I do want you to focus in on are the things that are likely to happen, the probable things, the things that we can reasonably expect to happen. And then of course there are certain things that are inevitable.  Now as an estate planning attorney, what do you think I think might be inevitable? Most people shout out death and taxes. We can actually do most things about taxes now, the estate tax exemption is now 5.3 million dollars per person or 10.6 million per married couple. So, raise your hand if you think you might be worried about taxes. Most people don’t have to worry about taxes anymore. Now, we’re talking today about making decisions for an adult over the age of 18, so 18 and older is what is defined as an adult in Georgia. How do we determine whether this person might need a guardian? There are a lot of different factors that the court considers when trying to evaluate whether somebody might need a guardian. One of those factors is intellect, so intellectual capacity is one of the factors the court considers. Obviously an IQ test of some sort is helpful in this realm but it is not determinative. Intellectual capacity is one of the factors the court considers. A big factor the court considers, I would almost say bigger than intellect, is behaviors. How does their disability affect their ability to control themselves, act socially appropriate in various environments? So the court is looking at what does this person actually do when they’re out in the world, when they are managing their life. And then, a third factor the court is looking at is what opportunities does this person have in their life. If they rarely have an opportunity to get themselves in to trouble, we may not actually need a guardianship. Or, if we are able to function and get things done, we may not need to do a guardianship. For instance, we’ll see situations where mom is maybe 90 and their child is maybe 60 and their child with down syndrome, at 60 years old mom has just always been doing everything for them, no one has ever questioned it. Well the opportunity for needing a guardianship has not yet arisen, because the doctors just assumed that mom can make the decisions. But we have this wonderful new law called HIPPA, anybody familiar with HIPPA? It is the federal health care privacy law. It basically has a lot things telling doctors, hospitals, and insurance companies who you can talk to, who can make decisions. That is one of the leading factors now of why we have to do guardianships. That’s because we’re losing the opportunity to manage health care decisions for an individual. So that’s where the opportunities are limited and so the court has to intervene, create a guardianship and empower somebody to make decisions for that person. So, these are just three of the areas that the court considers when determining whether a guardianship is needed.


Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.