Under Georgia law, a guardian is authorized to make health care and residence decisions for the ward. But if the ward had previously executed an advance directive for health care, the named health care agent under that document may have priority over the guardian.
According to O.C.G.A. § 31-32-14(e), “Unless an advance directive for health care provides otherwise, a health care agent who is known to a health care provider to be available and willing to make health care decisions for a declarant has priority over any other person, including any guardian to act for the declarant in all matters covered by the advance directive for health care.”
In other words, if the health care agent disagrees with the guardian, the health care provider must take direction from the health care agent, not the guardian.
I am familiar with one hotly disputed guardianship case, where the adult son of an elderly parent was named as agent under an advance directive for health care, but the parent’s daughter sought guardianship, claiming that the health care agent was not properly caring for and neglecting the parent. The probate court found that the health care agent was indeed not acting in the parent’s best interest, and it appointed the daughter as guardian. But the order of the probate court did not invalidate the advance directive, so the health care agent was not barred from continuing to serve in that capacity. After the hearing, when the guardian sought to move the parent to a better assisted living facility and sought to take the parent to long overdue doctor appointments, the health care agent prevented the guardian from taking those actions, citing O.C.G.A. § 31-32-14(e). The result was that the guardian had to return to the probate court to seek an order invalidating the advance directive.
If you are seeking guardianship over a loved one, it is imperative that you are aware of any advance directive that your loved one may have signed naming a health care agent. If you are the named agent, no problem. If a family member or friend you trust is named as health care agent, likely no problem as well. But if the named health care agent has not been acting in the best interest of your loved one, and you are now seeking to be named as guardian, it is imperative that you request a declaration from the court that the appointment of a guardian invalidates the advance directive, so that you as guardian are not continuing to battle with the health care agent over the care of your loved one.
If you have questions about your rights as guardian to make health care decisions for a ward, please consult with Baumbusch Law for knowledgeable and understanding legal advice.