As an Atlanta guardianship attorney, I speak with a lot of people who are confused by Georgia’s guardianship and conservatorship laws and the difference in the roles between a guardian and a conservator. Before distinguishing those roles, it will be helpful to explain why a guardianship or conservatorship may be needed.
Generally, there are three circumstances in which a person needs a guardian and/or conservator: (1) a minor is no longer under the care of either of his or her parents (a/k/a natural guardians), (2) a minor is due a payment from a financial institution (e.g., life insurance proceeds, retirement plan beneficiary distribution, etc.) whether or not under the care of his or her parents, and (3) an adult becomes incapacitated to the extent that he or she cannot perform routine daily functions (e.g., cooking, bathing, paying bills, and balancing a check book) without help. In any of those circumstances, an interested party can petition the probate court of the county in which the minor or incapacitated adult (referred to as the “ward”) lives for the appointment of a guardian and/or conservator.
A guardian is a person appointed to look after the “person” of the ward. In other words, a guardian is charged with the day-to-day care and well-being of the ward. The guardian can either provide care for the ward directly or enlist the aid of professional or non-professional caretakers. A guardian is required to file a Personal Status Report with the court annually to declare the condition of the ward.
A conservator is a person appointed to manage the property of the ward. A conservator’s powers are similar to those of a financial power of attorney, with two primary differences: (1) a power of attorney is appointed by the owner of the property (commonly referred to as the “principal”), whereas a conservator is appointed by the court; and (2) a power of attorney, in most instances, is not obligated to manage the principal’s finances (he simply has the ability to perform transactions on the principal’s behalf), whereas a conservator is charged with the complete, proper management of the ward’s estate. A conservator is required to file an Inventory and Asset Management Plan with the court annually to declare the assets remaining in the ward’s estate and propose a general scheme for the investment and use of those assets for the benefit of the ward during the next year.
A guardian and conservator can be the same person or two different people. Typically, the person or persons appointed guardian and conservator are related to the ward. Often, the court will appoint a non-relative as conservator. This happens for various reasons, the most common being that no relative is qualified to assume or is interested in assuming the responsibility of the ward’s finances. In these cases, the court usually appoints what the applicable statute refers to as a “county guardian.” Because the requirements to qualify as a guardian are less strict, there usually are no problems appointing a relative as guardian, but in the rare cases where a relative is not qualified or interested, the court may appoint a “county guardian” for this role too, but the court almost never appoints the same “county guardian” to serve as both guardian and conservator.
One way to avoid the necessity of the appointment of a guardian or conservator is proper Georgia estate planning. A skilled, experienced Atlanta estate planning attorney can provide his client with the documents and knowledge to prevent such an outcome. If you would like to discuss how a proper estate plan will protect you and your family from an unnecessary and expensive guardianship or conservatorship proceeding, or if you have a loved one that did not have such protections in place and now faces the need of a guardian and conservator, please email me or call me at my Atlanta guardianship law firm at 404-467-8613 to find out how I can help you.
