Guardianships can take away a person’s rights to decide to marry,
make contracts, consent to medical treatment, and establish a residence.
Conservatorships allow the appointee to manage the ward’s finances and
assets, buy and sell property, and enter into business and commercial
transactions. Both the guardianship and conservatorship can also take
away a person’s right to bring and defend actions in court. There are
several other, less intrusive ways to act on behalf of someone with
diminished mental or physical capacity. One or more of the following
alternatives may serve the needs of an incapacitated adult without
unnecessarily limiting his or her rights and freedoms.
A petition for a temporary medical consent guardian is one option to a
traditional guardianship. If, based upon the facts presented in the
petition, the court determines that there is probable cause to believe
that the proposed medical consent ward is in need of a temporary medical
consent guardian immediately, and after all of the preliminary steps
have been completed including holding a hearing, the court may appoint a
temporary medical consent guardian. The temporary medical consent
guardianship shall terminate on the earliest of the court’s removal of
the temporary medical consent guardian, the effective date of the
appointment of a permanent guardian, the duration of the current
hospitalization of the medical consent ward or a substantially
continuous stay in another health care facility, or sixty (60) days from
the date of appointment of the temporary medical consent guardian.
A Durable Power of Attorney (“DPA”) is another option that allows a
competent individual to grant someone else the authority to make
decisions regarding their finances and/or other issues pertaining to
their personal affairs. It not only contains certain instructions, but
also names an agent to make health care decisions in accordance with the
instructions, and to enforce the person’s stated intentions. A DPA is
broader in scope than a living will and applies any time a person
becomes incapable of making or communicating health care decisions.
Georgia Advance Directives for Health Care combine a living will and
Health Care Power of Attorney into one document. This document includes
treatment preferences of the person signing the Directive and provides a
clear understanding of how medical decisions should be made by the
person to be appointed as guardian. This directive is executed in
advance of incapacitation to be used when a person can no longer
communicate their own wishes.
Georgia law regarding persons authorized to consent to surgical or
medical procedures allow physicians to treat individuals who do not have
the ability to consent. Inability of any adult to consent means a
determination in the medical record by a licensed physician, after the
physician has personally examined the adult, that the adult lacks
sufficient understanding or capacity to make significant responsible
decisions regarding his or her medical treatment, or the ability to
communicate their decisions by any other means. After an individual’s
inability to consent has been determined, the law allows for the next of
kin to make important medical decisions without a guardianship.
A special needs trust is a particular kind of trust that can be
established for the benefit of a person with a disability. The assets in
this kind of trust can only be used in restricted ways, but they allow a
person with a disability to have access to funds that might otherwise
disqualify them from a variety of benefits programs. Because it allows
for significantly more flexibility than a conservatorship, this option
should be considered as well.
The information included herein is only intended to address some of
the alternatives to guardianship and conservatorship and provide a basic
understanding of the same. This information is not all inclusive, and
should not be used as or considered to be legal advice.
Full Article & Source:
Alternatives to guardianship and conservatorship
