The Mascia Law Firm Can Show You Why Guardianship Is Necessary
A Guardianship becomes necessary when an individual lacks the capacity to make a rational decision regarding his or her health care. The need for a Guardianship may occur even when an individual has executed a Georgia Advance Directive for Health Care. The reason behind this is because an advance directive can always be revoked and does not give the health care agent the authority to have control and authority over the ward. Remember, there is no prohibition on making bad decisions. The courts favor the autonomy of the individual. So the standard is not whether an individual is making a bad decision, it is whether they understand the consequences of those decisions.
As an individual begins to make more and more bad decisions such as:
- not eating properly
- not taking prescription medications
- leaving the burners on the stove on
- not keeping the house sanitary-while resisting offers of assistance
Someone may have to step up to the plate to take control. That control is taken through the Guardianship process. The Guardianship process in Georgia takes place in the probate court in the county in which the proposed Ward resides or the county where the proposed ward is found. The Petition must be signed by the person seeking to be the guardian (usually a family member) and another person, either someone who is familiar with the situation or a medical professional.
After the petition has been filed in the appropriate probate court, the judge will appoint an attorney for the proposed ward (if that individual in not already represented) and a medical professional (either a physician, a psychologist, or a licensed clinical social worker) to help the court make the capacity determination. After meeting with the proposed ward, the medical professional submits a report of findings and a recommendation as to whether or not a guardianship seems to be necessary. Finally, a court hearing will take place and the Probate Judge will make the determination as to whether to award the guardianship or not. This is essentially the ultimate weighing of individual autonomy against the safety of the individual. This is extremely stressful on all parties to this action and should only be sought if and when no alternative is available and the proposed ward's health and safety need protection. If any alternative is available, that alternative is preferable.
How do we determine when to file for a guardianship? Short of someone being in a comatose state with no family members, that can be a difficult question to answer. In practice, we see the greatest need for guardianships in individuals who are dealing with a loss of functional capacity due to a dementing disease or stroke. Often in this situation the proposed ward is making terrible decisions and those decisions are placing the proposed ward into a serious danger of harm to him or herself. Always remember that the courts do not like to take rights away from people, so unless it is absolutely necessary, a guardianship will not be awarded.
Guardianship is a serious family decision, contact The Mascia Law Firm today for more information and a free consultation from a qualified Florida guardianship lawyer.