Guardianship is a legal relationship between the guardian and ward, much like that of an agent or attorney-in-fact, that is created by Order of a court with proper jurisdiction. In Georgia, the Probate Courts have exclusive jurisdiction over the appointment of guardians for minors and incapacitated adults. Guardianship may be created for the person of the ward, for the property of the ward, or for both. Guardianship of the person of a minor child does differ from custody of a minor child, which may be awarded only by Superior or Juvenile Courts, and a Probate Court is without authority to grant guardianship of the person of a minor child with a living parent to anyone other than the parent(s) without the consent of or notice to each living parent. The guardian of the person need not be the same person as the guardian of the property, although one person may certainly serve as both. There may be two or more guardians, who would be referred to as co-guardians.

When an Order has been issued appointing a guardian, Letters of Guardianship are issued by the Court to the person appointed. The Letters of Guardianship serve to evidence that the guardian has authority over the person or property (or both) of the ward. The guardian is first required to take and sign an oath that the guardian will comply with all of the requirements of Georgia law applicable to guardians.

In addition, every guardian of the property of another is required to post a surety bond with the Court, in such amount as may be set by the Court, to secure the faithful performance of the guardian’s duties and responsibilities. The bond is, in effect, an insurance policy against any misappropriation or mismanagement of the ward’s property by the guardian. Although the bond may be personally endorsed by someone owning sufficient equity in real estate to cover the amount of the bond, most bonds are endorsed by commercial bonding companies. Non-commercial bonds are generally required in twice the amount of the bond, while corporate surety bonds may be in an amount equal to the bond amount. Probate Courts generally prefer, and often require, the use of corporate sureties on bonds. The premium for the bond is, as will also be shown under the section on “Commissions and Expenses,” payable from the ward’s estate as an expense of administration, and there is no requirement that the guardian bear this expense personally.

A guardian of the person or property of another owes a duty of undivided loyalty to the ward and must act in the best interests of the ward and the ward’s property. Guardians should always avoid even the appearance of a conflict of interest in management of the ward’s property and/or in decisions about the ward’s person. Self-dealing (that is buying of property from or selling of property to the ward by the guardian) is inherently suspicious and must be closely scrutinized by the Court. It should, therefore, be avoided except in unusual circumstances. Additionally, any expenditure which appears to or does benefit another, especially the guardian, more than the ward will be subject to scrutiny by the Court.

SOURCE: Catoosa County Probate Court