Is the formal appointment of a guardian by the Probate Court necessary to care for or conduct the affairs of an adult who has become incapacitated or disable?  The answer to this very important question, asked often by not only the family and friends of the adult but also by the adult, depends on the circumstances of each individual case.  Posing the question is both appropriate and prudent, because adult guardianship proceedings are fairly complicated and time-consuming, as well as relatively expensive, primarily as a result of the due process protections help assure that the Court receives clear and convincing evidence of incapacity before removing the rights of an adult citizen and that the order issued in every case is “fashioned” to the particular circumstances.

However, there are often available alternatives to guardianship  which may accomplish the needed ends in any particular case.  These alternatives should be considered, where applicable, and should be utilized in every case when doing so would accomplish the underlying purpose AND provide any needed protection for the adult.

It is important to distinguish physical disability or incapacity from mental disability or incapacity.  One can be physically incapacitated yet retain full mental competence.  On the other hand, one might be mentally incapacitated but be physically quite fit and well.

The availability and/or effectiveness of any of these alternatives will likely be dependent upon the type and extent of incapacity.  To be legally effective and sufficient, the documents discussed herein requiring the signature of the adult must be signed at a time when the adult is capable and competent to understand the nature and purpose of the documents.  Utilization of or preparation of the alternatives reviewed in this pamphlet may require the services of an attorney experienced in this field.

The Georgia Code defines a living will as a written directive instructing a physician to withhold or withdraw life-sustaining procedures in the event of a terminal condition, a coma, or a persistent vegetative state.  It may also direct the withholding of food and water for a comatose, terminal patient.  Its basic purpose is to protect a patient’s dignity and prevent unnecessary pain and suffering at the end of life.  Any person who is of  sound mind may execute a living will.  (Physical condition is irrelevant, as long as the individual is fully capable of understanding the document.)

The Georgia Code contains a form “Living Will,” which will be presumed valid and effective.  There are very precise and detailed provisions governing the execution of a living will, the types of witnesses required and a person’s right to revoke the living will.  There are a number of specific requirements in the law governing the conditions under which the life-sustaining procedures may be withheld or withdrawn.  Those relying in good faith on the directive are shielded from liability.  There are criminal sanctions against persons concealing or forging a living will.

The durable power of attorney for health care (DPAFHC) is quite different from the living will.  A living will is written set of instructions by the person wishing to express the person’s intentions regarding life-support decisions.  A DPAFHC  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.  It covers many more situations than does a living will and applies any time a person becomes incapable of making or expressing health care decisions, not just at the end of life.  It also allows for the authority to make anatomical gifts (organ and tissue donations).

As with living wills, the Georgia Code contains the form for the DPAFHC and sets forth the statutory requirements of formality of completion and execution.  If the named agent is available, the DPAFHC will supersede a living will.  However, to cover the possibility of the unavailability of the agent, many attorneys recommend the execution of both a living will and a durable power.

In addition to a health care power of attorney, one may also execute a financial or general power of attorney, which may be combined with or executed separately from the health care power.  A financial power of attorney names an agent to act in the place of the individual, primarily in monetary and property matters, and defines the extent of  or limitation on the authority given.  The authority granted may be very limited and specific or be quite broad and include the authority to:  write checks and make deposits in accounts; buy and sell real estate or other property or investments; negotiate and settle debts and claims; etc.  Powers of attorney (both general and health care), executed while the adult is mentally competent, often allow for the conduct of all business and personal affairs of the adult once incapacitated without the necessity of guardianship.  However, in the event a guardian of the property is appointed for the principal, the power of attorney is terminated by the entry of the order appointing the guardian.

The Georgia Code now contains a form for the Financial Power of Attorney and an explanation for principals of the nature of the power.

A competent adult may also create an inter vivos, or “Living”, trust which provides for the handling of all or certain financial affairs by a designated trustee.  Like a power of attorney, it allows one to specify the person or entity (e.g., a trust department) to handle the affairs ad manage the trust property and may define the exact manner of property management.  It is also beneficial in that it designates the trustee with whom third parties may deal regarding financial and other matters within the scope of the trust in the event of incapacity.

When a person who receives Social Security, Supplemental Security Income or VA benefits becomes incapable of managing those benefits, the Social Security Administration or Veterans’ Administration can appoint a representative payee for such benefits without necessity of guardianship.  If the person is a resident of a nursing or personal care home, the benefits may be made payable directly to the care facility.  If the resident also qualifies for Medicare or Medicaid, an assignment of benefits may satisfy any balance of monthly care charges in excess of Social Security or VA benefits.

It is also important to recognize that, in an emergency, the law allows physicians to treat anyone who is incapable of giving informed consent.  In non-emergency situations, the next of kin may consent if the patient is unable to do so.  The Georgia Medical Consent Law lists the persons who may consent to medical care for another and authorizes physicians to act in emergency situations.  Guardianship may not be necessary to consent to medical treatment, unless there is a dispute among those persons having equal voice under the law.

Placement in a personal care home or nursing home often can be accomplished without a guardian, as long as the resident is either (a) cooperative or (b) incapable of objection.  A competent adult has the right to determine his own residence, and a facility is without authority to restrain an adult absent consent, unless the authority to determine residence has been placed in another (a guardian).  At times it may be difficult to gauge whether a new resident will ultimately “object,” since he may be resistant at first but may adjust after a period of time and voluntarily remain resident.  Of course, it is also necessary to make the financial arrangements for the care of the resident, which may be done by the resident (if competent), an attorney-in-fact, or by anyone accepting the obligation and guaranteeing payment.

In 1999, the Georgia Legislature passed the “Temporary Health Care Placement Decision Maker for an Adult Act.”  Under the Act, upon certification by attending physician that an adult in a hospital, institution, medical center, or other health care institution is incapable of giving consent to a discharge from such facility and a transfer or admission to an alternative facility or placement, including nursing facilities, personal care homes,  rehabilitation facilities and home and community based programs, considered to be in the adult’s best interest, authority to grant such limited consent is given to a list of persons similar to the Georgia Medical Consent Law.  If no one authorized by such law is available or if all who are available waive authority to consent or dissent to the discharge, transfer or admission, a petition may be filed in the probate court seeking an order solely authorizing such discharge, transfer or admission.  The order will be limited in time to those purposes and does NOT result in the appointment of a guardian.

Of course, there are times when full, legal guardianship is needed and necessary.  In those cases, the law provide appropriate protections for the adult, and guardians appointed by the Court are monitored by and must file written, periodic reports on the condition of the ward and the ward’s property with the probate court establishing the guardianship.

*Judge William J. Self, II first took office on April 17, 1989, having been elected to fill the unexpired term of the late Judge Tilman E. Self. Judge Self was re-elected to successive four-year terms in 1992 and 1996. Judge Self obtained both his undergraduate degree (BBA-Acctg., 1971) and his law degree (JD, 1974) from the University of Georgia. Prior to taking office, he was engaged in the general practice of law in Macon from 1974 until 1989. Judge Self is a member of the State Bar of Georgia, the Macon Bar Association, and the American Bar Association and is active in the Georgia Council of Probate Court Judges, the National College of Probate Judges, and the National Conference of Special Court Judges. Judge Self is a frequent speaker and lecturer and has received a distinguished speaker award from the Georgia Institute for Continuing Judicial Education.