JUDICIAL DECISIONS

Constitutionality. - Because a petition to terminate a guardianship filed in the probate court did not include any constitutional challenge, an order declaring two provisions in the recently revised guardianship code, O.C.G.A. § 29-1-1 et seq., as unconstitutional was reversed, given that a constitutional question was not raised by the pleadings or in any portion of the record; therefore, absent a proper attack, the probate court lacked the authority to strike the provisions down. In the Interest of J.R.R., 281 Ga. 662 , 641 S.E.2d 526 (2007).

Cited in Anaya v. Coello, 279 Ga. App. 578 , 632 S.E.2d 425 (2006).

RESEARCH REFERENCES

138 Am. Jur. Trials, Guardianships, § 1 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2571, and former Code 1933, §§ 49-101 and 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, are included in the annotations for this Code section.

Definition of "guardian of the person." - A guardian of the person is defined to be one who has been lawfully invested with the care of the person of an infant whose natural guardian is dead, and is considered as standing in the place of the natural guardian. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

Construction of "natural guardianship." - Natural guardianship, pure and simple, is of the person only, and is incident to the relation of parent. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

Circumstances under which probate judge has power to appoint guardian. - The ordinary (now probate judge) is without power to appoint a guardian for the person or for the property of a child unless the child has no guardian as to the one or the other of these things for which the guardianship is asked. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

There cannot be two guardianships at same time as to either person or property of infant, though one person may be guardian of infant's person and another may be guardian of infant's property. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

Mother is natural guardian automatically. - Ordinary (now probate judge) has nothing to do with constituting mother natural guardian; the mother is natural guardian by operation of law, and without any action whatever by the ordinary (now probate judge) - no appointment, no letters of guardianship are contemplated and nothing is said of any authority of the ordinary (now probate judge) to displace the parent as guardian of the person. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

Appointment limited to guardianship of property where natural guardian. - For a minor having no guardian, the ordinary (now probate judge) may appoint a guardian of person and property, or of either, but if the minor has a natural guardian, it certainly cannot be said in a broad sense that the person has no guardian; in such case the range of appointment is limited to guardianship of the property, for it is only as to property that there is no guardian. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former Code 1933, § 49-101).

Guardian is entitled to possession of ward's effects. - Guardian of person and property of a lunatic is entitled to retain possession and control of ward's effects so long as guardianship continues; and to deprive the guardian of such possession and control before ward is restored to sanity, it is necessary that the guardian's letters be revoked and another guardian appointed. Bonner v. Evans, 89 Ga. 656 , 15 S.E. 906 (1892) (decided under prior law).

Commingling of funds and failure to account is breach. - Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se breach of the bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-603).

Guardian cannot maintain divorce proceedings. - Suit for divorce instituted by guardian in behalf of one who has been adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106 , 45 S.E.2d 621 (1947) (decided under former Code 1933, § 49-603).

Proceeding by next friend for waste with proceeding to remove guardian. - If a next friend suing in behalf of a lunatic can maintain an action for waste committed by the guardian, or recover money in the guardian's hands, it can be done only in connection with a proceeding to remove the guardian and revoke guardianship letters. Bonner v. Evans, 89 Ga. 656 , 15 S.E. 906 (1892) (decided under prior law).

Cited in Bulloch v. Bulloch, 45 Ga. App. 1 , 163 S.E. 708 (1932); Anaya v. Coello, 279 Ga. App. 578 , 632 S.E.2d 425 (2006).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 5 et seq, 40, 89, 90.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 99 et seq., 208 et seq.

138 Am. Jur. Trials, Guardianships, §§ 3, 4 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 5, 6, 7.

57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR. - Power of parent to appoint testamentary guardian for adult imbecile child, 24 A.L.R. 1458 .

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531 .

Guardian de facto or de son tort of minor, 25 A.L.R.2d 752.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

JUDICIAL DECISIONS

Attorney's fees. - Because a lawyer failed to present any evidence of the value of the lawyer's services at a probate hearing, the trial court was left to determine that value based on its own experience; since the lawyer failed to prove that the contingency agreement with the beneficiaries of an estate provided for a reasonable fee, the trial court was authorized to determine that $15,000 was a reasonable fee. Rowen v. Estate of Hughley, 272 Ga. App. 55 , 611 S.E.2d 735 (2005).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 38 et seq., 46 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 116 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 24 et seq.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Rights of Natural Guardian
• Bond

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-102 and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.

Probate court without authority to appoint guardian if living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-2 ).

Child support transfer not benefitting child improper. - Transfer by parent of child support judgment without benefitting child is inconsistent with parent's duties as natural guardian of child and child's property. 1972 Op. Att'y Gen. No. 72-147 (decided under former Code 1933, § 49-102).

Parents responsible for locating child absent from school without authorization. - Whereabouts of minor child would clearly seem to fall within area of parental or guardianship responsibility, and therefore, primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-102).

Domicile of minor is that of parents, but this can be altered where usual parental authority and control over the minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5 (decided under former O.C.G.A. § 29-4-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 5 et seq., 89, 90.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 2 et seq., 18 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 12, 16.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Minority of parent as affecting right to guardianship or custody of person or estate of child, 19 A.L.R. 1043 .

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531 .

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Bond

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 11 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 5 et seq., 10 et seq., 20 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Power of parent to appoint testamentary guardian for adult imbecile child, 24 A.L.R. 1458 .

Validity of statute precluding alien from acting as guardian, 39 A.L.R. 943 .

Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

Function, power, and discretion of court where there is testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Temporary guardianship dissolved. - Under former O.C.G.A. § 29-4-4.1(c), trial court correctly dissolved guardianship under former O.C.G.A. § 29-4-4.1 where guardianship at time of its creation was intended to be or was represented to be temporary in nature. Hays v. Jeng, 184 Ga. App. 157 , 360 S.E.2d 913 (1987) (decided under former O.C.G.A. § 29-4-4.1)

Appointment to provide health insurance denied. - Where the child was living with the mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, the court properly refused to appoint a temporary guardian solely for the provision of health insurance. In re Roscoe, 242 Ga. App. 440 , 529 S.E.2d 897 (2000) (decided under former O.C.G.A. § 29-4-4.1)

Cited in Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Cannot appoint permanent guardian if child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Temporary guardianship dissolved. - Under former O.C.G.A. § 29-4-4.1(c), trial court correctly dissolved guardianship under former § 29-4-4.1 when guardianship at time of its creation was intended to be or was represented to be temporary in nature. Hays v. Jeng, 184 Ga. App. 157 , 360 S.E.2d 913 (1987) (decided under former O.C.G.A. § 29-4-4.1)

Appointment to provide health insurance denied. - When the child was living with the mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, the court properly refused to appoint a temporary guardian solely for the provision of health insurance. In re Roscoe, 242 Ga. App. 440 , 529 S.E.2d 897 (2000) (decided under former O.C.G.A. § 29-4-4.1)

Cited in Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Cannot appoint permanent guardian if child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Temporary guardianship dissolved. - Under former O.C.G.A. § 29-4-4.1(c), the trial court correctly dissolved guardianship under former § 29-4-4.1 since guardianship at time of its creation was intended to be or was represented to be temporary in nature. Hays v. Jeng, 184 Ga. App. 157 , 360 S.E.2d 913 (1987) (decided under former O.C.G.A. § 29-4-4.1)

Appointment to provide health insurance denied. - Since the child was living with the mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, the court properly refused to appoint a temporary guardian solely for the provision of health insurance. In re Roscoe, 242 Ga. App. 440 , 529 S.E.2d 897 (2000) (decided under former O.C.G.A. § 29-4-4.1)

Cited in Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Cannot appoint permanent guardian where child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Best interest standard requires clear and convincing evidence of harm to the child. - Best interests of the child standard in O.C.G.A. § 29-2-8(b) required a guardian to prove by clear and convincing evidence that the child would suffer physical or emotional harm if custody were awarded to the biological parent and that continuation of the guardianship would promote the child's welfare and happiness. With this narrowing construction, the best interest of the child standard in § 29-2-8(b) was constitutional. Boddie v. Daniels, 288 Ga. 143 , 702 S.E.2d 172 (2010).

In a mother's petition to terminate her parents' temporary guardianship over her child under O.C.G.A. § 15-11-14 , the trial court erred in failing to consider whether the grandparents proved by clear and convincing evidence that termination would cause the child physical or long-term emotional harm; therefore, remand was required for further consideration. In the Interest of K. M., 344 Ga. App. 838 , 811 S.E.2d 505 (2018).

Petition to terminate temporary guardianship denied. - Mother's petition to terminate the temporary guardianship was properly denied because the temporary guardian and the temporary guardian's wife had been the caretakers of the child for the vast majority of the child's life, since the mother gave the child up; the child had formed a psychological bond with the temporary guardian and the wife, calling them "mommy" and "daddy," while referring to the mother by the mother's first name; the mother had emotionally, physically, and financially neglected the child for the vast majority of the child's life; and continuation of the temporary guardianship would best promote the child's welfare and happiness given that the child had bonded with, and thrived in the care of, the temporary guardian. In the Interest of J. L., 352 Ga. App. 125 , 834 S.E.2d 141 (2019).

Temporary guardianship dissolved. - Under former O.C.G.A. § 29-4-4.1(c), the trial court correctly dissolved guardianship under former § 29-4-4.1 since guardianship at time of its creation was intended to be or was represented to be temporary in nature. Hays v. Jeng, 184 Ga. App. 157 , 360 S.E.2d 913 (1987) (decided under former O.C.G.A. § 29-4-4.1)

Appointment to provide health insurance denied. - Since the child was living with the mother, who was not alleged to be incompetent or under any duress or difficulty with respect to her parental responsibilities, the court properly refused to appoint a temporary guardian solely for the provision of health insurance. In re Roscoe, 242 Ga. App. 440 , 529 S.E.2d 897 (2000) (decided under former O.C.G.A. § 29-4-4.1)

Cited in Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4.1 are included in the annotations for this Code section.

Cannot appoint permanent guardian where child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

RESEARCH REFERENCES

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 58, 170.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Ward's Right to Select
• Jurisdiction

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.

Cannot appoint guardian of person where child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 19 et seq., 31 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 10 et seq.

ALR. - Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Consideration and weight of religious affiliations in appointment or removal of guardian for minor child, 22 A.L.R.2d 696.

Right of infant to select his own guardian, 85 A.L.R.2d 921.

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2518, former Civil Code 1910, § 3039, Ga. L. 1922, p. 46, § 1, former Code 1933, § 49-107, and former O.C.G.A. § 29-4-8 are included in the annotations for this Code section.

Contest for guardianship of person and property of one adjudged incompetent. - Former Civil Code 1895, § 2518 (former O.C.G.A. § 29-4-8) was applicable to a contest for guardianship of the person and property of one who has been adjudged incapable of managing one's estate and therefore liable to have a guardian appointed for that person. Armor v. Moore, 104 Ga. 579 , 30 S.E. 821 (1898) (decided under former Civil Code 1895, § 2518).

Nearest relative has absolute right to appointment if unobjectionable. See Kelley v. Kelley, 129 Ga. App. 257 , 199 S.E.2d 399 (1973) (decided under former Code 1933, § 49-107); Abrams v. Daffron, 155 Ga. App. 182 , 270 S.E.2d 278 (1980);(decided under former Code 1933, § 49-107);.

Meaning of word "objectionable". - The word "objectionable" in former Code 1933, § 49-107 referred not to moral qualities exclusively but to any position or course of dealing which led to the conclusion that the interest of a person selected was adverse to that of the estate. Kelley v. Kelley, 129 Ga. App. 257 , 199 S.E.2d 399 (1973) (decided under former Code 1933, § 49-107).

A court has wide discretion in determining whether an applicant was entitled to the absolute preference set forth in former O.C.G.A. § 29-4-8, and it was apparent that "objectionability" in a guardianship dispute was not the same as "parental unfitness," which must generally be shown before a court can interfere with a parent's right to custody over a child. An inquiry into a guardianship applicant's "unobjectionability" may broadly consider the applicant's suitability, habits, responsibility, sense, and morality, as well as the financial interests of the child. A person may be "objectionable," and not entitled to guardianship as a matter of right, even though the objections would not authorize interfering with the person's right to custody of the person's own child. Huval v. Jacobs, 248 Ga. App. 696 , 548 S.E.2d 437 (2001) (decided under former O.C.G.A. § 29-4-8).

Grandparent named as testamentary guardian should prevail. - Where both parents of an infant child are deceased, the father having survived the mother and by will having provided that his mother should be testamentary guardian of the person of such child, and where in a contest between the paternal and the maternal grandmothers of the child it appears that both are fit and proper persons to have custody of the child, the testamentary guardian is entitled to the custody. Shanks v. Ross, 173 Ga. 55 , 159 S.E. 700 (1931) (decided under Ga. L. 1922, p. 46, § 1).

Child's grandmother was not entitled to the absolute preference provided for in the statute, and custody of the child was properly awarded to the child's aunt and uncle since: (1) the trial court noted that the grandmother had not exhibited good parenting skills in regard to her own children and had led an inappropriate life style in the presence of minors in the past; (2) the court noted that she divorced the children's father when they were young and then had two long term live in relationships while the minor children lived in her house; (3) one of the children went to live with her father for a year when she was 13 because of difficulties in her relationship with her mother and subsequently left home before finishing high school; and (4) the court found that the grandmother had time and again made poor moral decisions and that educational success had not been a priority for her or her children. Huval v. Jacobs, 248 Ga. App. 696 , 548 S.E.2d 437 (2001) (decided under former O.C.G.A. § 29-4-8).

Preference of remaindermen is immaterial. - Under the provisions of former Civil Code 1895, § 2518 (former O.C.G.A. § 29-4-8), the ward's nearest of kin by blood, if unobjectionable, was, in such a contest, entitled to the appointment; and the preference of remaindermen, to whom the ward's estate may eventually belong was not, in legal contemplation, material. Armor v. Moore, 104 Ga. 579 , 30 S.E. 821 (1898) (decided under former Civil Code 1895, § 2518) Johnson v. Kelly, 44 Ga. 485 (1871) See also Chalker v. Thornton, 31 Ga. App. 791 , 122 S.E. 244 (1924);.

Sureties on bond of clerk not liable for clerk's default. - Sureties upon official bond of clerk of superior court are not liable thereon for sureties' default as guardian appointed by the ordinary (now judge of probate court) under provisions of former Civil Code 1910, § 3039 (former O.C.G.A. § 29-4-11 ). Hardwick v. Fidelity & Deposit Co., 29 Ga. App. 567 , 116 S.E. 220 , cert. denied, 29 Ga. App. 799 , 116 S.E. 648 (1923) (decided under former Civil Code 1910, § 3039).

Attorney's fees. - Because the attorney failed to present any evidence of the value of the lawyer's services at a probate hearing, the trial court was left to determine that value based on its own experience and, since the lawyer failed to prove that the contingency agreement with the beneficiaries of an estate provided for a reasonable fee, the trial court was authorized to determine that $15,000 was a reasonable fee. Rowen v. Estate of Hughley, 272 Ga. App. 55 , 611 S.E.2d 735 (2005).

Purported settlement agreement involving the ward not enforceable. - Trial court did not err in denying a driver's motions to enforce a settlement with the driver's injured passenger, and dismiss the passenger's action, as: (1) the attorney, who purported to agree to the settlement of the passenger's claim, lacked the authority to do so; and (2) the undisputed evidence revealed that at the time of the purported settlement no guardian had been appointed for the passenger. Anaya v. Coello, 279 Ga. App. 578 , 632 S.E.2d 425 (2006).

Cited in Price v. Matthews, 68 Ga. App. 510 , 23 S.E.2d 535 (1942); Gwinnett County v. Old Peachtree Partners, LLC, 329 Ga. App. 540 , 764 S.E.2d 193 (2014).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 40 et seq.

7 Am. Jur. Pleading and Practice Forms, Compromise and Settlement, § 39 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 24 et seq.

ALR. - Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 3033 and 3046, and former Code 1933, § 49-112 are included in the annotations for this Code section.

For purpose of notice, see New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided prior to amendment of former Civil Code 1810, § 3046 by Ga. L. 1958, p. 673, § 2, which changed notice requirement).

Citation unnecessary to appoint mother as guardian of daughter's property. - In order for a mother, the natural guardian, to also be appointed guardian of her daughter's property, citation is unnecessary. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Citation necessary for appointment for one not child of applicant. - Where application is for appointment of guardian of a minor child under 14 years of age, other than child of applicant, it is necessary for citation to issue. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Second citation unnecessary. - It is not necessary to issue a second citation when the first citation of application for letters of administration is for the appointment of one person even though the court issues letters of administration to an entirely different person, as to whose appointment no previous notice had been given to any one. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

No citation is necessary for appointment of testamentary guardian and a testamentary guardian might be authorized by probate court to take charge of property coming to the guardian's ward from sources other than parent's will, without necessity of citation. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Further notice unnecessary for testamentary guardian over property from other sources. - Where applicant has already, by will, been made testamentary guardian, it is a matter of testamentary disposition, and there would seem to be no necessity for further notice. Moreover, the law raises implication that there could be no better selection for guardianship of property of minors coming from outside sources than that already provided by the father in his own will as to their persons and property devised by the will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

Cited in Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942); Price v. Matthews, 68 Ga. App. 510 , 23 S.E.2d 535 (1942); Henderson v. Hale, 209 Ga. 307 , 71 S.E.2d 622 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 60, 61.

C.J.S. - 39 C.J.S., Guardian and Ward, § 33 et seq.

ALR. - Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Civil Code 1910, §§ 3033, 3046, former Code 1933, §§ 49-112 and 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

For purpose of notice, see New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided prior to amendment of former Civil Code 1810, § 3046 by Ga. L. 1958, p. 673, § 2, which changed notice requirement).

Notice and hearing requirements of Juvenile Code mandatory. - Juvenile court committed reversible error in granting the children's paternal grandparents custody and guardianship of the children because the court failed to follow the statutory mandates outlined in the Juvenile Code as the mother did not consent to transfer of permanent guardianship and no guardianship petition was filed and provided to the mother with the notice of proceedings. In the Interest of J. C., 350 Ga. App. 34 , 827 S.E.2d 717 (2019).

Citation unnecessary to appoint mother as guardian of daughter's property. - In order for a mother, the natural guardian, to also be appointed guardian of her daughter's property, citation is unnecessary. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Citation necessary for appointment for one not child of applicant. - Where application is for appointment of guardian of a minor child under 14 years of age, other than child of applicant, it is necessary for citation to issue. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Second citation unnecessary. - It is not necessary to issue a second citation when the first citation of application for letters of administration is for the appointment of one person even though the court issues letters of administration to an entirely different person, as to whose appointment no previous notice had been given to any one. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

No citation is necessary for appointment of testamentary guardian and a testamentary guardian might be authorized by probate court to take charge of property coming to the guardian's ward from sources other than parent's will, without necessity of citation. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Further notice unnecessary for testamentary guardian over property from other sources. - When an applicant has already, by will, been made testamentary guardian, it is a matter of testamentary disposition, and there would seem to be no necessity for further notice. Moreover, the law raises implication that there could be no better selection for guardianship of property of minors coming from outside sources than that already provided by the father in his own will as to their persons and property devised by the will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

Requiring notice is to protect public and alleged incompetent. - The object of former Code 1933, § 49-604 in requiring notice to relatives was not to confer any right upon them, but was solely for the purpose of protecting public and interest of alleged incompetent. Phillips v. Phillips, 202 Ga. 776 , 44 S.E.2d 767 (1947) (decided under former Code 1933, § 49-604).

Relations notified are not parties in their own behalf but are notified for benefit of person to be considered and given an opportunity to be heard in that person's behalf. They are not summoned by process; no judgment can be rendered against them merely because of such notice; and there is no provision for taxing costs against them. Slaughter v. Heath, 127 Ga. 747 , 57 S.E. 69 , 27 L.R.A. (n.s.) 1 (1907) (decided under former Code 1895, § 2573).

Proceedings in probate court only governed by recording requirement in former O.C.G.A. § 29-5-6(e)(2) and on de novo appeal from probate court decision on guardianship petition, superior court may, but was not required to, have the hearing reported. Snider v. Lavender, 164 Ga. App. 591 , 298 S.E.2d 582 (1982) (decided under former O.C.G.A. § 29-5-6).

Names and addresses of adult children of ward. - Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Stepchildren are not included in "children. " - A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234 , 392 S.E.2d 5 (1990) (decided under former O.C.G.A. § 29-5-6).

Guardian appointment for person of nonresident insane person within county. - Probate courts of this state have jurisdiction to appoint a guardian for person of nonresident insane person if nonresident is found within limits of county of probate court's jurisdiction. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Probate court of Cobb County did not lack jurisdiction over proceedings involving ward who was a Stephens County resident but had been transferred to a convalescent center in Cobb County, where it was uncontroverted that no plea to the court's jurisdiction was filed and that ward was at the time of the proceeding "found" in Cobb County. Smith v. Young, 187 Ga. App. 191 , 369 S.E.2d 798 (1988) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding. - Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532 , 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351 , 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Motion to intervene not required. - It was not error for the probate court to permit the Department of Human Resources to intervene in guardianship proceedings without requiring it to file a motion to intervene. In re Martin, 218 Ga. App. 79 , 460 S.E.2d 304 (1995) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence. - Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial. - Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695 , 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Mental capacity to petition for appointment of guardian. - A person receiving social security disability benefits based on a mental disability, who had not been adjudicated to be incapacitated, was not disqualified to petition for appointment of a guardian for mother. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction. - The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited. - For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968)(decided under former Code 1933, § 49-604) (decided under former Code 1933, § 49-604); Trapnell v. Smith, 131 Ga. App. 254 , 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void. - When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Failure to have hearing recorded impacts appeal. - Absent a record of the hearing, the appellate could not determine whether the probate court's finding that appellant was incapable of managing appellant's estate was supported by clear and convincing evidence; accordingly, because the probate court failed to have the hearing recorded or reported, appellant was effectively denied appellant's right to appeal the probate court's decision. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

Standing to appeal from grant of petition. - Where the probate court granted wife's petition for guardianship over her husband, the superior court correctly dismissed an appeal by the adult children of the husband because they did not file a petition for guardianship under former O.C.G.A. § 29-5-6 and did not hold any other status under former O.C.G.A. § 29-5-11(a) . Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942); Price v. Matthews, 68 Ga. App. 510 , 23 S.E.2d 535 (1942); Henderson v. Hale, 209 Ga. 307 , 71 S.E.2d 622 (1952); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of former O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of former O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 64, 65, 66.

7 Am. Jur. Pleading and Practice Forms, Compromise and Settlement, § 39 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 9, 17 et seq., 265 et seq. 56 C.J.S., Mental Health, § 22 et seq. 57 C.J.S.*, Mental Health, § 124 et seq.

ALR. - Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-7 are included in the annotations for this Code section.

Ward's right to make will. - The appointment of a guardian for adults who are incapacitated does not destroy the ward's right or ability to make a will. Pope v. Fields, 273 Ga. 6 , 536 S.E.2d 740 (2000) (decided under former O.C.G.A. § 29-5-7).

Cited in Levenson v. Oliver, 202 Ga. App. 157 , 413 S.E.2d 501 (1991); Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 139.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1822 and former Code 1933, § 49-201 are included in the annotations for this Code section.

Guardian stands in loco parentis to child, with duty to provide for the child's welfare. Where parental duty and control are lost to a third person by any of the ways recognized by law, such person stands in loco parentis to the child, with the duty and obligation to provide for the child's welfare. Hale v. Henderson, 210 Ga. 273 , 79 S.E.2d 804 (1954) (decided under former Code 1933, § 49-201).

When there is no father or mother, the guardian becomes head of the family. Rountree v. Dennard, 59 Ga. 629 , 27 Am. R. 401 (1877) (decided under former Code 1873, § 1822).

Guardian of minor child has same claim to custody. - Former Code 1933, § 49-201 (former O.C.G.A. § 29-2-1 ) clearly indicated that guardian of person and property of minor child had same claim to custody of the child as the child's father would have had. Beavers v. Williams, 194 Ga. 875 , 23 S.E.2d 171 (1942) (decided prior to revision of former Code 1933, § 49-201 by Ga. L. 1976, p. 688, § 4, at which time section employed term "father" rather than "parent").

Guardian's duty to maintain. - Court cannot derive from the duty to protect and maintain, required by former Code 1933, § 49-201 (former O.C.G.A. § 29-2-1 ), a guardian's duty to visit the guardian's ward in the state hospital. Tucker v. Lea, 83 Ga. App. 207 , 63 S.E.2d 252 (1951) (decided under former Code 1933, § 49-201).

Upon marriage between adult and underage ward, rights and powers of the guardian cease, both as respects her person and her estate, and the husband acquires the same right and incurs the same obligations which he acquires and incurs in case his wife is of age. Nicholson v. Wilborn & McWhorter, 13 Ga. 467 (1853) (decided under prior law).

Cited in Banister v. Bagley, 56 Ga. App. 615 , 193 S.E. 480 (1937); Beavers v. Williams, 199 Ga. 114 , 33 S.E.2d 343 (1945); Phillips v. Phillips, 203 Ga. 106 , 45 S.E.2d 621 (1947); Loftis v. Johnson, 249 Ga. 794 , 294 S.E.2d 511 (1982); Dep't of Corr. v. Barkwell, 256 Ga. App. 877 , 570 S.E.2d 13 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-201 are included in the annotations for this Code section.

Whereabouts of minor child would seem to fall within area of parental or guardianship responsibility and therefore the primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-201).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 1 et seq., 86 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 56 et seq., 75 et seq., 283 et seq.

ALR. - Right of natural guardian to custody or control of infant's property, 6 A.L.R. 115 .

Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Appointment of guardian for infant as affecting rights and duties of parents, 63 A.L.R. 1147 .

Right and obligation of guardian other than parent in respect of services rendered by, or board or services furnished to, ward, 64 A.L.R. 692 .

Care required of trustee or guardian with respect to retaining securities coming into his hands as assets of the estate, 77 A.L.R. 505 .

Right of trustee, executor, administrator, or guardian to purchase property of estate or trust at sale brought about by third person, 77 A.L.R. 1513 .

Power of guardian or committee of incompetent in respect of insurance on ward's life, or of policy under which he has interest, 84 A.L.R. 366 .

Power and duty of trustee, executor, administrator, or guardian as regards protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979 .

Ownership by trustee, executor, or guardian in his own right of stock in a corporation in which he also holds stock in his fiduciary capacity, 106 A.L.R. 220 ; 161 A.L.R. 1039 .

Authority of next friend or guardian ad litem, or of attorney employed by him, to receive payment or acknowledge satisfaction of judgment in favor of infant, 111 A.L.R. 686 .

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535 .

Guardian's contract employing attorney as binding on ward or his estate, 171 A.L.R. 468 .

Power of guardian of incompetent to change beneficiary in ward's life insurance policy, 21 A.L.R.2d 1191.

Power of guardian representing unborn future interest holders to consent to invasion of trust corpus, 49 A.L.R.2d 1095.

Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.

Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R.3d 863.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit, 32 A.L.R.5th 673.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1838 are included in the annotations for this Code section.

Jurisdiction of juvenile court in transferred custody proceeding. - Georgia Supreme Court affirmed the transfer of a father's petition for custody from Gwinnett County, Georgia, to Douglas County, Georgia, because the "complaint for custody" that the father filed in Gwinnett County fairly was read as a petition to modify, vacate, or revoke the permanent guardianship, a petition over which the Juvenile Court of Douglas County had exclusive jurisdiction under the circumstances. In the Interest of M. F., 298 Ga. 138 , 780 S.E.2d 291 (2015).

Guardian empowered to appoint agent. - Guardian had power to appoint agent to act for guardian during absence in confederate army, and any act of agent within scope of agent's authority would be as valid as that of guardian. Tarpley v. McWhorter, 56 Ga. 410 (1876) (decided under former Code 1873, § 1838).

Letters of testamentary guardianship. - Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; equity afforded no valid basis for the superior court's exercise of jurisdiction because the aunt and uncle had an appropriate remedy in the probate court to challenge the testamentary guardianship: a petition for revocation or suspension of the brother's letters of testamentary guardianship. Zinkhan v. Bruce, 305 Ga. App. 510 , 699 S.E.2d 833 (2010).

Proceeding by next friend for waste with proceeding to remove guardian. - If a next friend suing in behalf of a lunatic can maintain an action for waste committed by the guardian, or recover money in the guardian's hands, it can be done only in connection with a proceeding to remove the guardian and revoke guardianship letters. Bonner v. Evans, 89 Ga. 656 , 15 S.E. 906 (1892) (decided under prior law).

Attorney's fees. - Because a lawyer failed to present any evidence of the value of the lawyer's services at a probate hearing, the trial court was left to determine that value based on its own experience; since the lawyer failed to prove that the contingency agreement with the beneficiaries of an estate provided for a reasonable fee, the trial court was authorized to determine that $15,000 was a reasonable fee. Rowen v. Estate of Hughley, 272 Ga. App. 55 , 611 S.E.2d 735 (2005).

Guardian had not sought change of domicile. - In a wrongful death action, a decedent's minor children remained domiciled in Georgia because the guardian had not applied to a probate court to change the children's domicile to Alabama as required by O.C.G.A. § 29-2-22(b) . D.R. v. Grant, 770 F. Supp. 2d 1337 (M.D. Ga. 2011).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 70 et seq., 86 et seq.

C.J.S. - 43 C.J.S., Infants, § 407 et seq. 57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR. - Amount of attorneys' compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Cited in Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 99 et seq., 205 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2528, former Code 1873, § 1812, and former Code 1933, §§ 49-113 and 113-1402 are included in the annotations for this Code section.

Inventory as admission. - Inventory required by law to be made and returned by an administrator is an admission, though not a conclusive one, of possession of such assets of an intestate as are therein described. Ellis v. McWilliams, 70 Ga. App. 195 , 27 S.E.2d 886 (1943) (decided under former Code 1933, § 113-1402).

Administrator may explain any mistake or error in the inventory, or may show that the administrator's intestate had no title to the property inventoried. The administrator's inventory of assets as belonging to the administrator's intestate puts the burden on the administrator to show its incorrectness. Ellis v. McWilliams, 70 Ga. App. 195 , 27 S.E.2d 886 (1943) (decided under former Code 1933, § 113-1402).

Prima facie proof of ownership by estate. - Inventory and appraisement, when properly filed and recorded in the office of the court of ordinary (now probate court), is prima facie proof as to the property owned by the deceased at the time of death, and an estimate of the value thereof. If not a true inventory and appraisal, the burden is upon the removed administrator to prove that it is not correct, and account to the ordinary (now probate judge) for the items which the administrator listed and submitted to the appraisers, and which the administrator verified as correct. Ellis v. McWilliams, 70 Ga. App. 195 , 27 S.E.2d 886 (1943) (decided under former Code 1933, § 113-1402).

Cited in Speck v. Speck, 42 Ga. App. 517 , 156 S.E. 706 (1931); Kinsey v. Fidelity & Cas. Co., 53 Ga. App. 674 , 187 S.E. 246 (1936); Harris v. Seals, 29 Ga. 585 (1859); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951); Holsenbeck v. Arnold, 75 Ga. App. 311 , 43 S.E.2d 348 (1947); Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865 , 134 S.E.2d 850 (1964).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, § 516 et seq. 39 Am. Jur. 2d, Guardian and Ward, §§ 67, 86 et seq.

C.J.S. - 33 C.J.S., Executors and Administrators, § 89. 34 C.J.S., Executors and Administrators, § 1200. 39 C.J.S., Guardian and Ward, §§ 35, 36, 141.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Renewal of copyright where author is dead, 19 A.L.R. 295 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2528, former Code 1873, § 1812, former Code 1933, § 49-113, and former Code 1933, § 113-1401 are included in the annotations for this Code section.

Only substantial compliance with statutes in execution of bonds required. - Policy of the law as to all bonds required by statute, and especially as to bonds of guardians, administrators, and like trustees, is to disregard mere formalities, and to require only substantial compliance to secure all statutory remedies to persons injured by their breach. United States Fid. & Guar. Co. v. Davis, 2 Ga. App. 525 , 58 S.E. 777 (1907) (decided under former Civil Code 1895, § 2528).

Grant of letters without bond not void without notice. - In all cases of appointment by ordinary (now judge of probate court) of guardian of a minor - whether the clerk of the superior court or some other proper person - bond should be required; but the grant of letters without taking bond would not be void as against a bona fide purchaser under the guardian, without notice of want of a bond. Cuyler v. Wayne, 64 Ga. 78 (1879) (decided under former Code 1873, § 1812).

Commingling of funds and failure to account is breach. - Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se a breach of bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-113).

Void sale does not amount to breach. - Where sale of realty conducted by guardian is illegal and void, title to property sold does not pass, and heirs and distributees may assert their title to property so sold, so that there is no such loss to them as would amount to breach of bond of administrator and render surety thereon liable. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-113).

Cited in Speck v. Speck, 42 Ga. App. 517 , 156 S.E. 706 (1931); Kinsey v. Fidelity & Cas. Co., 53 Ga. App. 674 , 187 S.E. 246 (1936); Holsenbeck v. Arnold, 75 Ga. App. 311 , 43 S.E.2d 348 (1947); Brown v. Gibson, 203 Ga. 213 , 46 S.E.2d 68 (1948); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, § 521. 39 Am. Jur. 2d, Guardian and Ward, §§ 67, 188 et seq.

C.J.S. - 33 C.J.S., Executors and Administrators, § 91 et seq. 39 C.J.S., Guardian and Ward, §§ 13, 14, 35, 36, 50 et seq., 283 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Liability of guardian for loss of funds deposited in bank in form which discloses trust or fiduciary character, 90 A.L.R. 641 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

Time as of which value of property is to be computed for purpose of inheritance, succession, or estate tax, 160 A.L.R. 1059 .

Valuation of United States Treasury bonds for state inheritance or estate tax purposes, 62 A.L.R.3d 1272.

JUDICIAL DECISIONS

Termination of testamentary guardianship. - Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; under O.C.G.A. § 29-2-30(a) , termination of the brother's guardianship would not occur until the earliest of the following events: the minors reached age 18, the minors were adopted, the minors were emancipated, the minors died, or a court order terminating the guardianship was entered, and none of those conditions were met. Zinkhan v. Bruce, 305 Ga. App. 510 , 699 S.E.2d 833 (2010).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 74 et seq., 164 et seq., 214.

C.J.S. - 39 C.J.S., Guardian and Ward, § 41 et seq. 43 C.J.S., Infants, §§ 437, 438, 439.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1850, Cobb's 1851 Digest, p. 340, former Code 1882, § 1849, former Civil Code 1895, §§ 2567, 2568, former Code 1933, § 49-314, and former O.C.G.A. § 29-2-84 are included in the annotations for this Code section.

Letters of dismission act as bar to matters they cured. - Letters of dismission granted to guardian, like other judgments of courts of competent jurisdiction, are a bar as to matters cured by them, unless set aside for fraud in their procurement or for other sufficient cause. Mobley v. Mobley, 9 Ga. 247 (1851) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 340); Poullain v. Poullain, 72 Ga. 412 (1884); Poullain v. Poullain, 76 Ga. 420 , 4 S.E. 92 (1886) (decided under former Code 1882, § 1849);(decided under former Code 1882, § 1849).

Dismissal presupposes a validly appointed guardian. Gay v. Gay, 121 Ga. App. 287 , 173 S.E.2d 712 (1970) (decided under former Code 1933, § 49-314).

Dismissal amounts to adjudication that guardian has fully and completely performed all duties of trust. Gay v. Gay, 121 Ga. App. 287 , 173 S.E.2d 712 (1970) (decided under former Code 1933, § 49-314).

Discharge without notice publication does not bar suit. - Discharge granted without compliance with notice publication requirement does not bar suit on guardian's bond. Griffin v. Collins, 122 Ga. 102 , 49 S.E. 827 (1905) (decided under former Civil Code 1895, § 2567).

Discharge without notice does not bar personal jurisdiction. - Since an application for dismission of a guardian was published as required by former O.C.G.A. § 29-2-84(a), the probate court did not lack personal jurisdiction even though the ward was never served with notice of the dismission. Utica Mut. Ins. Co. v. Mitchell, 227 Ga. App. 830 , 490 S.E.2d 489 (1997) (decided under former O.C.G.A. § 29-2-84).

Possibility of conflict of interest does not require refusal of dismission. - Mere possibility of conflict between personal interest of guardian who is salaried officer and director in corporation in which ward owns stock and interest of guardian's ward will not require refusal of letters of dismission to guardian. Gay v. Gay, 226 Ga. 90 , 172 S.E.2d 690 (1970) (decided under former Code 1933, § 49-314).

Cited in Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 41 et seq.

ALR. - Rate of interest chargeable against guardians, executors or administrators, and trustees, 112 A.L.R. 833 ; 156 A.L.R. 936 .

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest, 69 A.L.R.3d 1198.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 and former Code 1882, § 1848 are included in the annotations for this Code section.

Guardian must present suitable successor who is willing to accept. - Before guardian is permitted to resign the guardian must present a fit and suitable person to the ordinary (now judge of probate court) as successor who is willing to accept. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1873, § 1848); King v. Hughes, 52 Ga. 600 (1874);(decided under former Code 1873, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 79 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 41 et seq., 50 et seq., 281.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 85.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 48, 49, 281.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 53-6-144 are included in the annotations for this Code section.

Letters of testamentary guardianship. - Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; equity afforded no valid basis for the superior court's exercise of jurisdiction because the aunt and uncle had an appropriate remedy in the probate court to challenge the testamentary guardianship: a petition for revocation or suspension of the brother's letters of testamentary guardianship. Zinkhan v. Bruce, 305 Ga. App. 510 , 699 S.E.2d 833 (2010).

Commission on extra compensation authorized. - An administrator was entitled to a commission on a sum disbursed to the administrator as extra compensation. Sams v. Leskanic, 220 Ga. App. 202 , 469 S.E.2d 703 (1996) (decided under former O.C.G.A. § 53-6-144).

Commission on prior commission not authorized. - An administrator was not entitled to the payment of a commission on a previously paid commission. Sams v. Leskanic, 220 Ga. App. 202 , 469 S.E.2d 703 (1996) (decided under former O.C.G.A. § 53-6-144).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1807, former Code 1882, § 1816, former Civil Code 1910, § 3051, former Code 1933, § 49-232, and former O.C.G.A. § 29-2-45 are included in the annotations for this Code section.

Religious belief of guardian does not render guardian unfit to discharge guardianship. Maxey v. Bell, 41 Ga. 183 (1870) (decided under former Civil Code 1910, § 3051).

Suit against guardian for waste permitted if regarding revocation of guardianship. - Suit by next friend in behalf of ward for waste committed by guardian, or recovery of money in guardian's hands, can be brought only in connection with a proceeding to remove guardian and revoke guardian's letters. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

Proceedings are against guardian as an individual, not against estate. - Proceedings to remove guardian and revoke guardian's letters, under former Code 1933, § 49-232, 49-115 or 49-116 (former O.C.G.A. § 29-2-45, § 29-4-14 , or § 29-4-15 ), were proceedings against guardian as an individual, and not against the estate or trust guardian represents; and where guardian was removed as guardian and guardian's letters revoked, it was proper that guardian appeal therefrom as an individual. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232).

On question of removal, interest of ward governs, rather than that of guardian. Morse v. Caldwell, 55 Ga. App. 804 , 191 S.E. 479 (1937) (decided under former Code 1933, § 49-232).

Burden of proof rests upon party attacking guardian's conduct. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

Guardian who has been removed may appeal to superior court. - When guardian was removed and guardian's letters revoked, upon rule issued by the ordinary (now judge of probate court), under former Code 1933, § 49-232, 49-115 or 49-116 (former O.C.G.A. § 29-2-45, § 29-4-14 , or § 29-4-15 ), after hearing on guardian's answer to such rule, guardian may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232).

Revocation of letters of guardianship. - Where court of ordinary (now probate court) rendered decision revoking letters of guardianship, an appeal will lie from such decision to superior court, though no issue of fact be involved. Teasley v. Vickery, 133 Ga. 721 , 66 S.E. 918 (1910) (decided under former Civil Code 1910, § 3051).

For jurisdiction over removal proceedings where guardian and ward have moved from county of original appointment, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-232).

Guardian's failure to file annual returns was evidence that the guardian's fiduciary duties were breached and such evidence supported removal. Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998) (decided under former O.C.G.A. § 29-2-45).

Cited in Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Mitchell v. Mitchell, 201 Ga. 621 , 40 S.E.2d 738 (1946).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-232 are included in the annotations for this Code section.

Use of estate funds should accompany petition to revoke guardianship. - One who has been adjudged insane and confined to state mental hospital and who desires to use funds in estate for purpose of proving that sanity has been restored, should properly proceed by making application to ordinary (now judge of probate court) for revocation of letters of guardianship. 1952-53 Op. Att'y Gen. p. 373 (decided under former Code 1933, § 49-232).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 162 et seq., 178.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 4, 78, 80, 81, 255, 256.

ALR. - Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

Liability of guardian, or his surety, as affected by agreement by which he limits his control over funds or investments, 102 A.L.R. 1108 .

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, § 3994, former Code 1933, § 113-1411 and Ga. L. 1943, p. 409, § 1 are included in the annotations for this Code section.

Annual returns which do not substantially comply with the law are not prima facie proof in favor of the administrator. If they are allowed by the ordinary (now probate judge) and recorded, under the terms of the statute, anyone challenging their correctness must carry the burden of proving their incorrectness. But when the returns are not allowed by the ordinary (now probate judge), the burden is upon the administrator to prove the returns' correctness in a proceeding in the court of ordinary (now probate court) for an accounting and settlement. Ellis v. McWilliams, 70 Ga. App. 195 , 27 S.E.2d 886 (1943) (decided under Ga. L. 1943, p. 409, § 1).

Mere failure to attach vouchers to returns, standing alone, would not constitute a fraud upon the court of ordinary (now probate court). The total failure to file any returns at all would not, within itself, constitute fraud, nor afford a good reason for the interference of equity. While under the law it is the duty of an administrator to file annual returns accompanied by original vouchers, the duty is placed upon the ordinary (now probate court) to examine the returns to determine their correctness and interested parties are given 30 days in which to file objections to the returns. Hoffman v. Chester, 240 Ga. 296 , 49 S.E.2d 760 (1948) (decided under former Code 1933, § 113-1411).

Cited in Peavey v. Clemons, 10 Ga. App. 507 , 73 S.E. 756 (1912); McMullen v. Carlton, 192 Ga. 282 , 14 S.E.2d 719 (1941).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 53-7-180 are included in the annotations for this Code section.

Filing originals or copies of vouchers. - Banks, acting as guardians and administrators of estates, need not file originals or copies of vouchers with their returns if the banks file an affidavit stating that the original vouchers have been compared to each item on the return and that the return is correct. 1983 Op. Att'y Gen. No. U83-34 (decided under former O.C.G.A. § 53-7-180).

RESEARCH REFERENCES

Am. Jur. 2d. - 31 Am. Jur. 2d, Executors and Administrators, §§ 516, 517, 960, 961, 966 et seq., 973.

C.J.S. - 34 C.J.S., Executors and Administrators, § 890 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 and former Code 1882, § 1848 are included in the annotations for this Code section.

Guardian must present suitable successor who is willing to accept. - Before guardian is permitted to resign the guardian must present a fit and suitable person to the ordinary (now judge of probate court) as successor who is willing to accept. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1873, § 1848); King v. Hughes, 52 Ga. 600 (1874);(decided under former Code 1873, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 10, 40 et seq., 52 et seq., 85.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 20 et seq., 24 et seq., 35, 36, 48, 49, 281.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 and former Code 1882, § 1848 are included in the annotations for this Code section.

Debts due to guardian individually cannot be left to successor. - Guardian cannot discharge trust by turning over to successor debts due to the guardian individually from successor. Such is the rule, though successor be solvent at time, if, owing to the successor's subsequent insolvency, the ward is injured by settlement. Manning v. Manning, 61 Ga. 137 (1878) (decided under former Code 1873, § 1848); Maynard v. Cleveland, 76 Ga. 52 (1885);(decided under former Code 1882, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848);.

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 10, 56, 85, 88.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 41 et seq., 75 et seq., 210 et seq., 281, 283 et seq.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 49-239 are included in the annotations for this Code section.

For jurisdiction over removal and new appointments where guardian moves from county without removing trust, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-239).

Cited in Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E.2d 135 (1941); Rogers v. Taintor, 93 Ga. App. 54 , 90 S.E.2d 629 (1955).

RESEARCH REFERENCES

ALR. - Guardianship of incompetent or infant as affecting venue of action, 11 A.L.R. 167 .

RESEARCH REFERENCES

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 72 et seq.

RESEARCH REFERENCES

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 157.

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 217 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 474 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 274 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1850, Cobb's 1851 Digest, p. 341 are included in the annotations for this Code section.

Actions ex contractu and ex delicto not distinguished. - Georgia Laws 1850, Cobb's 1851 Digest, p. 341 does not warrant distinction between actions ex contractu and actions ex delicto. Averitt v. Pope, 30 Ga. 660 (1860) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 341).

Ward reaching majority during pendency of suit by nonresident guardian may be substituted as plaintiff in lieu of guardian. Sims ex rel. Talbot v. Renwick, 25 Ga. 38 (1858) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 341).

Cited in Ponder v. Foster, 23 Ga. 489 (1857); Goodwin v. Bowers, 169 Ga. 36 , 149 S.E. 567 (1929); Burns v. Phillips, 50 F.R.D. 187 (N.D. Ga. 1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 217 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 474 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 274 et seq.

ALR. - Capacity of guardian to sue or to be sued outside state where appointed, 94 A.L.R.2d 162.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Rights of Natural Guardian
• Bond

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-102 and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.

Probate court without authority to appoint guardian where living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-2 ).

Child support transfer not benefitting child improper. - Transfer by parent of child support judgment without benefitting child is inconsistent with parent's duties as natural guardian of child and child's property. 1972 Op. Att'y Gen. No. 72-147 (decided under former Code 1933, § 49-102).

Parents responsible for locating child absent from school without authorization. - Whereabouts of minor child would clearly seem to fall within area of parental or guardianship responsibility, and therefore, primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-102).

Domicile of minor is that of parents, but this can be altered where usual parental authority and control over the minor is ended by voluntary or involuntary relinquishment. 1981 Op. Att'y Gen. No. U81-5 (decided under former O.C.G.A. § 29-4-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 5 et seq., 40 et seq., 99 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 1, 12, 16.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Minority of parent as affecting right to guardianship or custody of person or estate of child, 19 A.L.R. 1043 .

Attempt to bastardize child as affecting right to custody of the child, 37 A.L.R. 531 .

Mental condition which will justify the appointment of guardian, committee, or conservator of the estate for an incompetent or spendthrift, 9 A.L.R.3d 774.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1882, § 2539, and former Code 1933, § 49-221 are included in the annotations for this Code section.

"Debt" means that fixed and specific amount is owing. - Distinguishing characteristic of word debt is that fixed and specific amount is owing and no future valuation is required to settle it. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

Cited in Georgia Power Co. v. Davis, 43 Ga. App. 791 , 160 S.E. 690 (1931); Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971); Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Claims Subject to Compromise
• Effect of Compromise

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 170 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 210 et seq.

ALR. - Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Power of guardian or committee to compromise liquidated contact claim or money judgments and of courts to authorize or approve such a compromise, 155 A.L.R. 196 .

Amount of attorneys' compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 46 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Bond

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 11 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 5 et seq., 10 et seq., 20 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Power of parent to appoint testamentary guardian for adult imbecile child, 24 A.L.R. 1458 .

Validity of statute precluding alien from acting as guardian, 39 A.L.R. 943 .

Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

Function, power, and discretion of court where there is testamentary appointment of guardian of minor, 67 A.L.R.2d 803.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Ward's Right to Select
• Jurisdiction

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 15 et seq., 26 et seq., 31 et seq., 54 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 10 et seq.

ALR. - Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167 .

Consideration and weight of religious affiliations in appointment or removal of guardian for minor child, 22 A.L.R.2d 696.

Right of infant to select his own guardian, 85 A.L.R.2d 921.

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Ward's Right to Select

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.

Cannot appoint guardian of person where child has living parent. - Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 26 et seq., 40 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 24 et seq.

ALR. - Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Consideration and weight of religious affiliations in appointment or removal of guardian for minor child, 22 A.L.R.2d 696.

Right of infant to select his own guardian, 85 A.L.R.2d 921.

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1910, §§ 3033 and 3046, former Code 1933, § 49-112, and former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

For purpose of notice, see New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided prior to amendment of former Civil Code 1810, § 3046 by Ga. L. 1958, p. 673, § 2, which changed notice requirement).

Citation unnecessary to appoint mother as guardian of daughter's property. - In order for a mother, the natural guardian, to also be appointed guardian of her daughter's property, citation is unnecessary. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Citation necessary for appointment for one not child of applicant. - When application is for appointment of guardian of a minor child under 14 years of age, other than child of applicant, it is necessary for citation to issue. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 (1938) (decided under former Code 1933, § 49-112).

Second citation unnecessary. - It is not necessary to issue a second citation when the first citation of application for letters of administration is for the appointment of one person even though the court issues letters of administration to an entirely different person, as to whose appointment no previous notice had been given to any one. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

No citation is necessary for appointment of testamentary guardian and a testamentary guardian might be authorized by probate court to take charge of property coming to the guardian's ward from sources other than parent's will, without necessity of citation. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Further notice unnecessary for testamentary guardian over property from other sources. - Where applicant has already, by will, been made testamentary guardian, it is a matter of testamentary disposition, and there would seem to be no necessity for further notice. Moreover, the law raises implication that there could be no better selection for guardianship of property of minors coming from outside sources than that already provided by the father in his own will as to their persons and property devised by the will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3046).

Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2 (c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Cited in Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942); Price v. Matthews, 68 Ga. App. 510 , 23 S.E.2d 535 (1942); Henderson v. Hale, 209 Ga. 307 , 71 S.E.2d 622 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 59 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 10 et seq., 33 et seq. 57 C.J.S., Mental Health, § 135 et seq.

ALR. - Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1810, § 3046 prior to amendment by Ga. L. 1958, p. 673, § 2 are included in the annotations for this Code section.

For purpose of notice, see New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided prior to amendment of former Civil Code 1810, § 3046 by Ga. L. 1958, p. 673, § 2, which changed notice requirement).

Cited in Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942); Price v. Matthews, 68 Ga. App. 510 , 23 S.E.2d 535 (1942); Henderson v. Hale, 209 Ga. 307 , 71 S.E.2d 622 (1952).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 52 et seq., 59 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 33 et seq.

ALR. - Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Necessity and sufficiency of notice to alleged incompetent of application for appointment of guardian or committee, 23 A.L.R. 594 .

Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Code 1933, § 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Proceedings in probate court only governed by recording requirement in former O.C.G.A. § 29-5-6(e)(2) and on de novo appeal from probate court decision on guardianship petition, superior court may, but was not required to, have the hearing reported. Snider v. Lavender, 164 Ga. App. 591 , 298 S.E.2d 582 (1982) (decided under former O.C.G.A. § 29-5-6).

Names and addresses of adult children of ward. - Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Guardian appointment for person of nonresident insane person within county. - Probate courts of this state have jurisdiction to appoint a guardian for person of nonresident insane person if nonresident is found within limits of county of probate court's jurisdiction. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Probate court of Cobb County did not lack jurisdiction over proceedings involving ward who was a Stephens County resident but had been transferred to a convalescent center in Cobb County, where it was uncontroverted that no plea to the court's jurisdiction was filed and that ward was at the time of the proceeding "found" in Cobb County. Smith v. Young, 187 Ga. App. 191 , 369 S.E.2d 798 (1988) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding. - Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532 , 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Motion to intervene not required. - It was not error for the probate court to permit the Department of Human Resources to intervene in guardianship proceedings without requiring it to file a motion to intervene. In re Martin, 218 Ga. App. 79 , 460 S.E.2d 304 (1995) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial. - Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695 , 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Mental capacity to petition for appointment of guardian. - A person receiving social security disability benefits based on a mental disability, who had not been adjudicated to be incapacitated, was not disqualified to petition for appointment of a guardian for mother. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction. - The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited. - For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968) (decided under former Code 1933, § 49-604); Trapnell v. Smith, 131 Ga. App. 254 , 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void. - When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Failure to have hearing recorded impacts appeal. - Absent a record of the hearing, the appellate could not determine whether the probate court's finding that appellant was incapable of managing appellant's estate was supported by clear and convincing evidence; accordingly, because the probate court failed to have the hearing recorded or reported, appellant was effectively denied appellant's right to appeal the probate court's decision. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 31 et seq.

C.J.S. - 56 C.J.S., Mental Health, § 24 et seq. 57 C.J.S.*, Mental Health, § 125 et seq.

ALR. - May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-7 are included in the annotations for this Code section.

Ward's right to make will. - The appointment of a guardian for adults who are incapacitated does not destroy the ward's right or ability to make a will. Pope v. Fields, 273 Ga. 6 , 536 S.E.2d 740 (2000) (decided under former O.C.G.A. § 29-5-7).

Cited in Levenson v. Oliver, 202 Ga. App. 157 , 413 S.E.2d 501 (1991); Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1855-56, p. 147, § 1, former Code 1895, § 2571, and former Code 1933, § 49-231, former Code 1933, § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Guardian failing to make annual return forfeits annual commission. - Under former O.C.G.A. § 29-2-44 and O.C.G.A. § 53-6-146, guardians and administrators who fail to make annual returns as required by law forfeit their commissions for those years unless the judge of the probate court orders them relieved of this forfeiture. Fuller v. Moister, 246 Ga. 397 , 271 S.E.2d 622 (1980) (decided under former Code 1933, § 49-231).

Failure entails burden of proving faithful discharge of duties. - Failure of executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and puts upon the executor the burden of proving to satisfaction of court that the executor discharged trust with fidelity. Wellborn v. Rogers, 24 Ga. 558 (1858) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to make returns of interest does not demonstrate fraud. - Failure of guardian to make returns of interest accumulated in guardian's hands is not by itself sufficient to authorize finding of fraud and charging of compound interest. Royston v. Royston, 29 Ga. 82 (1859) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2 (c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Guardian is entitled to possession of ward's effects. - Guardian of person and property of a lunatic is entitled to retain possession and control of ward's effects so long as guardianship continues; and to deprive the guardian of such possession and control before ward is restored to sanity, it is necessary that the guardian's letters be revoked and another guardian appointed. Bonner v. Evans, 89 Ga. 656 , 15 S.E. 906 (1892) (decided under prior law).

Commingling of funds and failure to account is breach. - Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se breach of the bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-603).

Guardian cannot maintain divorce proceedings. - Suit for divorce instituted by guardian in behalf of one who has been adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106 , 45 S.E.2d 621 (1947) (decided under former Code 1933, § 49-603).

Proceeding by next friend for waste with proceeding to remove guardian. - If a next friend suing in behalf of a lunatic can maintain an action for waste committed by the guardian, or recover money in the guardian's hands, it can be done only in connection with a proceeding to remove the guardian and revoke guardianship letters. Bonner v. Evans, 89 Ga. 656 , 15 S.E. 906 (1892) (decided under prior law).

Cited in Byne v. Anderson, 67 Ga. 466 (1881); Davis v. Culpepper, 167 Ga. 637 , 146 S.E. 319 (1929); Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Dowdy v. Jordan, 128 Ga. App. 200 , 196 S.E.2d 160 (1973); Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998); Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 (1998); Graves v. Brown, 237 Ga. App. 589 , 516 S.E.2d 324 (1999); Howard v. Estate of Howard, 249 Ga. App. 287 , 548 S.E.2d 48 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 86 et seq., 185 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 56 et seq., 75 et seq., 140 et seq., 210 et seq., 183 et seq. 57 C.J.S., Mental Health, §§ 135 et seq., 176 et seq., 185 et seq.

ALR. - Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 94 A.L.R. 1101 ; 96 A.L.R.3d 1102.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Authority of Probate Judge
• Notice
• Claims Subject to Compromise
• Effect of Compromise

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 86 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 15, 16, 56 et seq., 75 et seq., 280.

57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR. - Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552 .

Right of guardian to expend principal of ward's estate for maintenance and support, 5 A.L.R. 632 .

Right of natural guardian to custody or control of infant's property, 6 A.L.R. 115 .

Power of court to authorize guardian to borrow ward's money, 30 A.L.R. 461 .

Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111 .

Right of guardian who promises to provide out of own estate for ward to allowance out of ward's estate, 56 A.L.R. 536 .

Right of guardian to allowance for expenditures prior to appointment, 67 A.L.R. 1405 .

Right of trustee, executor, administrator, or guardian to purchase property of estate or trust at sale brought about by third person, 77 A.L.R. 1513 .

Liability of trustee, guardian, executor, or administrator for loss of funds invested, as affected by order of court authorizing the investment, 88 A.L.R. 325 .

Power of guardian to sell ward's property without order of court, 108 A.L.R. 936 .

Right of trustee or guardian to retain unauthorized securities held by testator or creator of trust, 122 A.L.R. 801 ; 135 A.L.R. 1528 .

Effect of beneficiary's consent to, acquiescence in, or ratification of, improper investments or loans (including failure to invest) by trustee or other fiduciary, 128 A.L.R. 4 .

Guardian's sale of ward's property initiated before, but not finally concluded until after, ward's attainment of majority, 141 A.L.R. 1022 .

Power of guardian or committee to compromise liquidated contract claim or money judgment, and of courts to authorize or approve such a compromise, 155 A.L.R. 196 .

Construction and effect of instrument authorizing or directing trustee or executor to retain investments received under such instrument, 47 A.L.R.2d 187.

Power of guardian representing unborn future interest holders to consent to invasion of trust corpus, 49 A.L.R.2d 1095.

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R.3d 863.

Amount of attorneys' compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2 (c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Cited in Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 99 et seq., 205 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2528, and former Code 1933, § 49-113 are included in the annotations for this Code section.

Cited in Speck v. Speck, 42 Ga. App. 517 , 156 S.E. 706 (1931); Kinsey v. Fidelity & Cas. Co., 53 Ga. App. 674 , 187 S.E. 246 (1936); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 35, 36, 141.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

JUDICIAL DECISIONS

Cited in Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 (1998); Graves v. Brown, 237 Ga. App. 589 , 516 S.E.2d 324 (1999).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 84, 210 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 3432, former Civil Code 1910, § 4008, and former Code 1933, §§ 49-215, 49-216, 49-217 are included in the annotations for this Code section.

For a discussion of liability of bank which receives fruits of misappropriation by trustee, see Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 (1934) (decided under former Code 1933, §§ 49-215, 49-217).

Former Civil Code 1910, § 3432 (former O.C.G.A. § 29-2-14 ) was inapplicable to exchange of lands. Mills v. Geer, 111 Ga. 275 , 36 S.E. 673 , 52 L.R.A. 934 (1900) (decided under former Civil Code 1895, § 3432).

Guardian acted in fiduciary capacity and was bound to utmost good faith with court and ward in interest of latter in proceeding under former Code 1933, § 49-216 (former O.C.G.A. § 29-2-14 ). American Sur. Co. v. Adams, 190 Ga. 575 , 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

Proceeding does not require appointment of guardian ad litem. - Petition of guardian to invest funds of ward under this law is an ex parte proceeding of the ward acting through the guardian; it does not require appointment of guardian ad litem for ward. American Sur. Co. v. Adams, 190 Ga. 575 , 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

No presumption that investments comply with statutes. - Although guardian may in good faith have disposed of funds by investing a portion of them in real estate for benefit of the ward, who afterwards during minority occupies the real estate as a home, there is no presumption that these expenditures are legally made by the guardian's having obtained from judge an order for investment of funds in real estate. New York Life Ins. Co. v. Gilmore, 40 Ga. 431 , 149 S.E. 799 (1929), rev'd on other grounds, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 4008).

Investment by guardian in violation of former Code 1933, § 49-216 (former O.C.G.A. § 29-2-14 ) was a breach of guardian's statutory bond that would authorize suit to recover amount from guardian and guardian's surety. American Sur. Co. v. Adams, 190 Ga. 575 , 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

For a discussion of liability of guardian for real estate investments without court order, see Paulk v. Roberts, 42 Ga. App. 79 , 155 S.E. 55 (1930) (decided under former Civil Code 1910, § 4008).

Cited in Springer v. Oliver, 21 Ga. 517 (1857); Brown v. Wright, 39 Ga. 96 (1869); New York Life Ins. Co. v. Gilmore, 40 Ga. 431 , 149 S.E. 799 (1929); Mobley v. Phinizy, 42 Ga. App. 33 , 155 S.E. 73 (1930); Citizens' & S. Nat'l Bank v. Clark, 172 Ga. 625 , 158 S.E. 297 (1931); Bacon v. Smith, 222 Ga. App. 542 , 474 S.E.2d 728 (1996).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 129 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 115 et seq.

ALR. - Power of court to authorize guardian to borrow ward's money, 30 A.L.R. 461 .

Right of trustee, executor, administrator, or guardian to purchase property of estate or trust at sale brought about by third person, 77 A.L.R. 1513 .

Effect of beneficiary's consent to, acquiescence in, or ratification of, improper investments or loans (including failure to invest) by trustee or other fiduciary, 128 A.L.R. 4 .

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Laws 1809, Cobb's 1851 Digest, p. 315, former Civil Code 1895, § 4630, and former Civil Code 1910, § 5176 are included in the annotations for this Code section.

Sale by will not applicable. - Former Code 1933, § 49-208 (former O.C.G.A. § 29-2-7 ) had no application to sale under power conferred by will. Harwell v. Foster, 102 Ga. 38 , 28 S.E. 967 (1897) (decided under former Civil Code 1895, § 4630).

Superior court shall determine necessity of order and validity of claim. - The superior court shall try both issue of necessity of order, and whether property is held adversely. Hull v. Watkins, 134 Ga. 779 , 68 S.E. 506 (1910) (decided under former Civil Code 1910, § 5176).

Validity of claim not dependent upon giving of bond. - It is not necessary to validity of claim of land at executor's or administrator's sale that bond and security should be given. Falls v. Griffith, 25 Ga. 72 (1858) (decided under former Laws 1809, Cobb's 1851 Digest, p. 315).

Cited in Hooper v. Howell, 50 Ga. 165 (1873); Rexford v. Bleckley, 131 Ga. 678 , 63 S.E. 337 (1908); Beach v. Lott, 132 Ga. 70 , 63 S.E. 627 (1909); Crawford v. Crawford, 139 Ga. 68 , 76 S.E. 564 (1912); Hammond v. Bennefield, 181 Ga. 380 , 182 S.E. 391 (1935).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 140 et seq.

ALR. - Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2528, former Code 1873, § 1812, and former Code 1933, § 49-113 are included in the annotations for this Code section.

Grant of letters without bond not void without notice. - In all cases of appointment by ordinary (now judge of probate court) of guardian of a minor - whether the clerk of the superior court or some other proper person - bond should be required; but the grant of letters without taking bond would not be void as against a bona fide purchaser under the guardian, without notice of want of a bond. Cuyler v. Wayne, 64 Ga. 78 (1879) (decided under former Code 1873, § 1812).

Commingling of funds and failure to account is breach. - Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se a breach of bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-113).

Cited in Speck v. Speck, 42 Ga. App. 517 , 156 S.E. 706 (1931); Kinsey v. Fidelity & Cas. Co., 53 Ga. App. 674 , 187 S.E. 246 (1936); Brown v. Gibson, 203 Ga. 213 , 46 S.E.2d 68 (1948); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 67, 188 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 13, 14, 35, 36, 50 et seq., 283 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Subsequent appointment of guardian as curing invalidity of prior sale of ward's property, 2 A.L.R. 1565 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2528, former Code 1873, § 1812, and former Code 1933, § 49-113 are included in the annotations for this Code section.

Only substantial compliance with statutes in execution of bonds required. - Policy of the law as to all bonds required by statute, and especially as to bonds of guardians, administrators, and like trustees, is to disregard mere formalities, and to require only substantial compliance to secure all statutory remedies to persons injured by their breach. United States Fid. & Guar. Co. v. Davis, 2 Ga. App. 525 , 58 S.E. 777 (1907) (decided under former Civil Code 1895, § 2528).

Grant of letters without bond not void without notice. - In all cases of appointment by ordinary (now judge of probate court) of guardian of a minor - whether the clerk of the superior court or some other proper person - bond should be required; but the grant of letters without taking bond would not be void as against a bona fide purchaser under the guardian, without notice of want of a bond. Cuyler v. Wayne, 64 Ga. 78 (1879) (decided under former Code 1873, § 1812).

Commingling of funds and failure to account is breach. - Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se a breach of bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-113).

Void sale does not amount to breach. - Where sale of realty conducted by guardian is illegal and void, title to property sold does not pass, and heirs and distributees may assert their title to property so sold, so that there is no such loss to them as would amount to breach of bond of administrator and render surety thereon liable. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776 , 189 S.E. 59 (1936) (decided under former Code 1933, § 49-113).

Cited in Speck v. Speck, 42 Ga. App. 517 , 156 S.E. 706 (1931); Kinsey v. Fidelity & Cas. Co., 53 Ga. App. 674 , 187 S.E. 246 (1936); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 67, 188 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 13, 14, 35, 36, 50 et seq., 283 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Liability of guardian for loss of funds deposited in bank in form which discloses trust or fiduciary character, 90 A.L.R. 641 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 67, 188 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 13, 14, 35, 36, 50 et seq., 283 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

Official bond of executor, administrator, guardian, or trustee as covering appeal taken by him, 132 A.L.R. 1280 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1882, §§ 1814, 1815, former Civil Code 1910, §§ 3049, 3050, and former Code 1933, §§ 49-115 and 49-116 are included in the annotations for this Code section.

Additional bond is discretionary and cumulative. - Additional bond required by former Code 1882, § 1814 (former O.C.G.A. § 29-4-14 ), upon other property coming in, was discretionary with the ordinary (now judge of probate court) and, if required, would be cumulative and not exclusive as to such assets. Huson v. Green, 88 Ga. 722 , 16 S.E. 255 (1892) (decided under former Code 1882, § 1814).

Additional bond is cumulative, Remington v. Hopson, 137 Ga. 95 , 72 S.E. 918 (1911) (decided under former Civil Code 1910, § 3049).

Proceedings for removal are against guardian as individual. - Proceedings to remove guardian and revoke guardian's letters under former Code 1933, §§ 49-232, 49-115, or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 ) were proceedings against the guardian as an individual, and not against estate or trust the guardian represents; and where the guardian was removed and letters revoked, it is proper that the guardian appeal therefrom as an individual. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-115).

Removed guardian may appeal to superior court. - Where guardian is removed and guardian's letters revoked, upon rule issued by ordinary (now judge of probate court) under O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 , after hearing on the ordinary's answer to such rule, the guardian may appeal to the superior court. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-115).

Proceeding under former Code 1933, § 49-116 (former O.C.G.A. § 29-4-15 ) can be instituted only by court. - See Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E.2d 135 (1941) (decided under former Code 1933, § 49-116).

Proceedings for removal are against guardian as individual. - Proceedings to remove guardian and revoke the guardian's letters under former Code 1933, § 49-232, 49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 ) were proceedings against the guardian as an individual, and not against estate or trust represented; and where the guardian was removed as guardian and letters revoked, it was proper that the guardian appeal therefrom as an individual. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-116).

Additional bond is cumulative; new sureties become cosureties. - Where additional security was required of guardian by court pursuant to former Code 1933, § 49-116 (former O.C.G.A. § 29-4-15 ), second bond is cumulative of first, and new sureties become cosureties with those on first bond. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E. 135 (1941) (decided under former Code 1933, § 49-116).

New sureties become cosureties on first bond for waste. - Where guardian's bond was executed for specific amount, and subsequently one of the sureties died, and, in proceeding under former Civil Code 1910, § 3050 (former O.C.G.A. § 29-4-15 ), guardian executed second bond with new sureties, the sureties upon such bond were cosureties with those on first bond for any past or future waste. Remington v. Hopson, 137 Ga. 95 , 72 S.E. 918 (1911) (decided under former Civil Code 1910, § 3050).

Death of only surety will not abate letters of guardianship. - Where guardian has been regularly appointed and has given bond, death of only surety on such bond will not abate letters of guardianship and render any act of guardian thereafter illegal and void. Prime v. Mapp, 80 Ga. 137 , 5 S.E. 66 (1888)(decided under former Code 1882, § 1815).

Purchaser not affected by failure to require additional security. - If upon death of surety on guardian's bond, the ordinary (now judge of probate court) fails to require new bond, and guardian continues to act as such and ordinary recognizes appointment and receives the guardian's returns, a purchaser at a guardian's sale will not be affected by failure of ordinary to require additional security of guardian. Prime v. Mapp, 80 Ga. 137 , 5 S.E. 66 (1888) (decided under former Code 1882, § 1815).

Guardian who has been removed may appeal to superior court. - Where guardian was removed and letters revoked, upon rule issued by ordinary (now judge of probate court) under former Code 1933, §§ 49-232, 49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 ) and after hearing on the ordinary's answer to such rule, guardian may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-116).

Cited in Fidelity & Deposit Co. v. Norwood, 38 Ga. App. 534 , 144 S.E. 387 (1928); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 13, 14, 35, 36, 50 et seq., 283 et seq.

ALR. - Leave of court as prerequisite to action on statutory bond, 2 A.L.R. 563 .

RESEARCH REFERENCES

ALR. - Liability of guardian for loss of funds deposited in bank in form which discloses trust or fiduciary character, 90 A.L.R. 641 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 2554 and former Code 1933, § 49-225 are included in the annotations for this Code section.

There were no exceptions to rule established by former Code 1933, § 49-225 (former O.C.G.A. § 29-2-47). Clark v. Great Am. Ins. Co., 387 F.2d 710 (5th Cir. 1967), cert. denied, 393 U.S. 825, 89 S. Ct. 86 , 21 L. Ed. 2 d 95 (1968) (decided under former Code 1933, § 49-225).

Sureties upon bond are estopped to deny guardianship of one who was guardian by estoppel. Griffin v. Collins, 125 Ga. 159 , 53 S.E. 1004 (1906) (decided under former Civil Code 1895, § 2554). Griffin v. Collins, 122 Ga. 102 , 49 S.E. 827 (1905) See also.

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 283 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 3504 are included in the annotations for this Code section.

History of former Civil Code 1895, § 3504 (former O.C.G.A. § 29-2-51 ) prior to 1958 amendment levy of execution against any defendant in fieri facias, see Bailey v. McAlpin, 122 Ga. 616 , 50 S.E. 388 (1905) (decided under former Civil Code 1895, § 3504).

Cited in Rogers v. Taintor, 93 Ga. App. 54 , 90 S.E.2d 629 (1955).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 201, 241, 242, 283 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 3504 are included in the annotations for this Code section.

History of former Civil Code 1895, § 3504 prior to 1958 amendment (former O.C.G.A. § 29-2-51 ) permitting levy of execution against any defendant in fieri facias, see Bailey v. McAlpin, 122 Ga. 616 , 50 S.E. 388 (1905) (decided under former Civil Code 1895, § 3504).

Cited in Rogers v. Taintor, 93 Ga. App. 54 , 90 S.E.2d 629 (1955).

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 201, 241, 242, 283 et seq.

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Liabilities of Discharged and Second Surety

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 293 et seq., 304 et seq.

ALR. - Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1855-56, p. 147, § 1, former Code 1868, § 1807, former Code 1882, § 1816, former Code 1933, §§ 49-231 and 49-232, and former O.C.G.A. § 29-2-45 are included in the annotations for this Code section.

Guardian failing to make annual return forfeits annual commission. - Under former O.C.G.A. § 29-2-44 and O.C.G.A. § 53-6-146, guardians and administrators who fail to make annual returns as required by law forfeit their commissions for those years unless the judge of the probate court orders them relieved of this forfeiture. Fuller v. Moister, 246 Ga. 397 , 271 S.E.2d 622 (1980) (decided under former Code 1933, § 49-231).

Failure entails burden of proving faithful discharge of duties. - Failure of executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and puts upon the executor the burden of proving to satisfaction of court that the executor discharged trust with fidelity. Wellborn v. Rogers, 24 Ga. 558 (1858) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to make returns of interest does not demonstrate fraud. - Failure of guardian to make returns of interest accumulated in guardian's hands is not by itself sufficient to authorize finding of fraud and charging of compound interest. Royston v. Royston, 29 Ga. 82 (1859) (decided under Ga. L. 1855-56, p. 147, § 1).

Former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45) was to be liberally construed in favor of incompetent ward. Aiken v. Mitchell, 66 Ga. App. 309 , 18 S.E.2d 219 (1941) (decided under former Code 1933, § 49-232).

Former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45) was applicable to guardians of incompetent veterans of World War I and other persons of unsound mind. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

"Unfit" is not limited nor is scope of inquiry. - "Unfit," as used in former Code 1933, § 49-232 (former O.C.G.A. § 29-2-45), was not limited to physical, mental, or moral conditions, and the Code laid down no limitations on scope of inquiry as to fitness and capacity of a guardian. Morse v. Caldwell, 55 Ga. App. 804 , 191 S.E. 479 (1937) (decided under former Code 1933, § 49-232).

Guardian's failure to file annual returns was evidence that the guardian's fiduciary duties were breached and such evidence supported removal. Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998) (decided under former O.C.G.A. § 29-2-45).

Cited in Byne v. Anderson, 67 Ga. 466 (1881); Davis v. Culpepper, 167 Ga. 637 , 146 S.E. 319 (1929); Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Mitchell v. Mitchell, 201 Ga. 621 , 40 S.E.2d 738 (1946); Dowdy v. Jordan, 128 Ga. App. 200 , 196 S.E.2d 160 (1973); Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 (1998); Graves v. Brown, 237 Ga. App. 589 , 516 S.E.2d 324 (1999); Howard v. Estate of Howard, 249 Ga. App. 287 , 548 S.E.2d 48 (2001).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 164 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 210 et seq.

ALR. - Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 94 A.L.R. 1101 ; 96 A.L.R.3d 1102.

Liability of guardian, or his surety, as affected by agreement by which he limits his control over funds or investments, 102 A.L.R. 1108 .

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535 .

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 41 et seq., 101, 104, 139, 210 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1839, former Code 1882, §§ 1839, 1849, former Code 1895, § 2567, former Civil Code 1895, § 2568, former Code 1933, §§ 49-301 and 49-314, and former O.C.G.A. § 29-2-84 are included in the annotations for this Code section.

Constitutionality. - Davis v. Harper, 54 Ga. 180 (1875) (decided under former Code 1873, § 1839).

Ward seeking accounting must apply to probate court. - Where duly qualified guardian had not filed for approval any annual returns, ward should have applied to ordinary (now judge of probate court), instead of superior court, for accounting which ward was seeking. Moon v. Moon, 215 Ga. 110 , 109 S.E.2d 39 (1959) (decided under former Code 1933, § 49-301).

Of age ward can cite former guardian for settlement. - Upon arriving at age, ward can cite former guardian, to appear before ordinary (now judge of probate court) for settlement of the guardian's accounts, whether the guardian was, in fact, guardian at the time of such citation and hearing or not. Hood v. Perry, 73 Ga. 319 (1884) (decided under former Code 1882, § 1839).

Relationship of guardian and ward does not terminate for settlement purposes when ward reaches majority. Pettigrew v. Williams, 65 Ga. App. 576 , 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

When ward reaches majority, relationship of guardian and ward continues only for purposes of settlement. Donehoo v. Commercial Bank & Trust Co., 124 Ga. App. 588 , 184 S.E.2d 690 (1971) (decided under former Code 1933, § 49-301).

Ward is not barred by statute of limitations in seeking accounting and settlement with guardian. Pettigrew v. Williams, 65 Ga. App. 576 , 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Approval not conclusive when given when ward was minor. - Approval of returns by probate court when ward was an infant is not conclusive against ward. Pettigrew v. Williams, 65 Ga. App. 576 , 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Application to executor of deceased guardian. - See Cunningham v. Schley, 34 Ga. 395 (1866) (decided under former Code 1863, § 1790).

Citation for settlement of non-resident guardian. - A guardian who has obtained letters of guardianship in one county but lives in another county becomes a quasi officer of the appointing court and may be cited by ordinary (now judge of probate court) of that county. Usry v. Usry, 82 Ga. 198 , 8 S.E. 60 (1888) (decided under former Code 1882, § 1839).

Citation of non-resident guardian when not subject to court's jurisdiction. - An ordinary (now judge of probate court) does not have jurisdiction to cite for settlement a guardian who was not appointed by the judge and who had never, in any way, been subject to jurisdiction of such judge and acknowledgment of service of citation was no waiver of jurisdiction where guardian did not appear or plead to the citation. Jackson v. Hitchcock, 48 Ga. 491 (1873) (decided under former Code 1873, § 1839).

Pleading which attacks approved returns of guardian must be specific. Pettigrew v. Williams, 65 Ga. App. 576 , 16 S.E.2d 120 (1941) (decided under former Code 1933, § 49-301).

Petitions in substantial compliance with law. - See Weldon v. Patrick, 69 Ga. 724 (1882) (decided under former Code 1882, § 1839); De Loach v. Waters, 54 Ga. App. 386 , 188 S.E. 58 (1936);(decided under former Code 1933, § 49-301).

One palpable item casts suspicion upon all. - The law presumes that one palpable item casts suspicion upon entire account. Poullain v. Poullain, 76 Ga. 420 , 4 S.E. 92 (1886) (decided under former Code 1882, § 1849).

Mingling with ward's uninvested funds incurs liability for interest. - While a guardian may have the right to hold funds of the ward, uninvested, for purpose of paying off a judgment as to which there is pending litigation, if the guardian mingles such funds with the guardian's own, the guardian is liable for interest thereon, even though the guardian individually has at all times with banks, enough money to settle fully with the ward, none of such money being deposited by the depositor as guardian. Jones v. Nolan, 120 Ga. 588 , 48 S.E. 166 (1904) (decided under former Civil Code 1895, § 2568).

Cited in Johnston v. James, 48 Ga. 554 (1873); Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Heist v. Dunlap & Co., 193 Ga. 462 , 18 S.E.2d 837 (1942); Head v. Head, 234 Ga. App. 469 , 507 S.E.2d 214 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 164 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 210 et seq.

ALR. - Rate of interest chargeable against guardians, executors or administrators, and trustees, 112 A.L.R. 833 ; 156 A.L.R. 936 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

Guardian's position as joint tenant of or successor to property in ward's estate as raising conflict of interest, 69 A.L.R.3d 1198.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 are included in the annotations for this Code section.

Guardian must present suitable successor who is willing to accept. - Before guardian is permitted to resign the guardian must present a fit and suitable person to the ordinary (now judge of probate court) as successor who is willing to accept. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1873, § 1848); King v. Hughes, 52 Ga. 600 (1874);(decided under former Code 1873, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 79 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 35, 36, 41 et seq.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

RESEARCH REFERENCES

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1807, former Code 1882, § 1816, former Civil Code 1910, § 3051, former Code 1933, § 49-232, and former O.C.G.A. § 29-2-45 are included in the annotations for this Code section.

Religious belief of guardian does not render guardian unfit to discharge guardianship. Maxey v. Bell, 41 Ga. 183 (1870) (decided under former Civil Code 1910, § 3051).

Suit against guardian for waste permitted if regarding revocation of guardianship. - Suit by next friend in behalf of ward for waste committed by guardian, or recovery of money in guardian's hands, can be brought only in connection with a proceeding to remove guardian and revoke guardian's letters. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

Proceedings are against guardian as an individual, not against estate. - Proceedings to remove guardian and revoke guardian's letters, under former Code 1933, §§ 49-232, 49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 ), were proceedings against guardian as an individual, and not against the estate or trust guardian represents; and where guardian was removed as guardian and guardian's letters revoked, it was proper that guardian appeal therefrom as an individual. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232).

On question of removal, interest of ward governs, rather than that of guardian. Morse v. Caldwell, 55 Ga. App. 804 , 191 S.E. 479 (1937) (decided under former Code 1933, § 49-232).

Burden of proof rests upon party attacking guardian's conduct. Dillon v. Sills, 54 Ga. App. 299 , 187 S.E. 725 (1936) (decided under former Code 1933, § 49-232).

Guardian who has been removed may appeal to superior court. - Where guardian was removed and guardian's letters revoked, upon rule issued by the ordinary (now judge of probate court), under former Code 1933, §§ 49-232, 49-115 or 49-116 (former O.C.G.A. §§ 29-2-45, 29-4-14 , or 29-4-15 ), after hearing on guardian's answer to such rule, guardian may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758 , 184 S.E. 361 (1936) (decided under former Code 1933, § 49-232).

Revocation of letters of guardianship. - Where court of ordinary (now probate court) rendered decision revoking letters of guardianship, an appeal will lie from such decision to superior court, though no issue of fact be involved. Teasley v. Vickery, 133 Ga. 721 , 66 S.E. 918 (1910) (decided under former Civil Code 1910, § 3051).

For jurisdiction over removal proceedings where guardian and ward have moved from county of original appointment, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-232).

Guardian's failure to file annual returns was evidence that the guardian's fiduciary duties were breached and such evidence supported removal. Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998) (decided under former O.C.G.A. § 29-2-45).

Cited in Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Mitchell v. Mitchell, 201 Ga. 621 , 40 S.E.2d 738 (1946).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-232 are included in the annotations for this Code section.

Use of estate funds should accompany petition to revoke guardianship. - One who has been adjudged insane and confined to state mental hospital and who desires to use funds in estate for purpose of proving that sanity has been restored, should properly proceed by making application to ordinary (now judge of probate court) for revocation of letters of guardianship. 1952-53 Op. Att'y Gen. p. 373 (decided under former Code 1933, § 49-232).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 162, 163.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 78, 80, 81, 255, 256.

ALR. - Liability of attorney for loss or waste of funds of minor, 62 A.L.R. 910 .

Liability of guardian, or his surety, as affected by agreement by which he limits his control over funds or investments, 102 A.L.R. 1108 .

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 are included in the annotations for this Code section.

Guardian must present suitable successor who is willing to accept. - Before guardian is permitted to resign the guardian must present a fit and suitable person to the ordinary (now judge of probate court) as successor who is willing to accept. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1873, § 1848); King v. Hughes, 52 Ga. 600 (1874);(decided under former Code 1873, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 56, 85.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 13, 20 et seq., 24 et seq., 35, 36, 48, 49, 281.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1848 are included in the annotations for this Code section.

Debts due to guardian individually cannot be left to successor. - Guardian cannot discharge trust by turning over to successor debts due to the guardian individually from successor. Such is the rule, though successor be solvent at time, if, owing to the successor's subsequent insolvency, the ward is injured by settlement. Manning v. Manning, 61 Ga. 137 (1878) (decided under former Code 1873, § 1848); Maynard v. Cleveland, 76 Ga. 52 (1885);(decided under former Code 1882, § 1848).

Order permitting resignation is not judgment that full settlement and accounting have been made. King v. Hughes, 52 Ga. 600 (1874) (decided under former Code 1873, § 1848).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 164 et seq., 185 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, §§ 41 et seq., 75 et seq., 210 et seq., 281, 283 et seq.

ALR. - Construction and application of statutes authorizing the appointment of trust company as guardian, trustee, or administrator upon application or consent of one acting as such (or as executor), or one entitled to appointment as such, 105 A.L.R. 1199 .

Right of appeal from order on application for removal of personal representative, guardian, or trustee, 37 A.L.R.2d 751.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1812, Cobb's 1851 Digest, p. 318 and Code 1933, § 49-239 are included in the annotations for this Code section.

Compliance discharges surety from further liability on account of guardian. - When provisions of the Act of 1812 (former O.C.G.A. § 29-2-70 ) are fully complied with, sureties on first bond are discharged from all further liability on account of their principal. Justices of Inferior Court ex rel. Selman v. Selman, 6 Ga. 432 (1849) (decided under Ga. L. 1812, Cobb's 1851 Digest, p. 318).

For jurisdiction over removal and new appointments where guardian moves from county without removing trust, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-239).

Cited in Jennings v. Longino, 49 Ga. App. 494 , 176 S.E. 94 (1934); Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E.2d 135 (1941); Rogers v. Taintor, 93 Ga. App. 54 , 90 S.E.2d 629 (1955).

RESEARCH REFERENCES

ALR. - Guardianship of incompetent or infant as affecting venue of action, 11 A.L.R. 167 .

RESEARCH REFERENCES

C.J.S. - 39 C.J.S., Guardian and Ward, § 274 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under Ga. L. 1850, Cobb's 1851 Digest, p. 341 are included in the annotations for this Code section.

Actions ex contractu and ex delicto not distinguished. - Georgia Laws 1850, Cobb's 1851 Digest, p. 341 does not warrant distinction between actions ex contractu and actions ex delicto. Averitt v. Pope, 30 Ga. 660 (1860) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 341).

Ward reaching majority during pendency of suit by nonresident guardian may be substituted as plaintiff in lieu of guardian. Sims ex rel. Talbot v. Renwick, 25 Ga. 38 (1858) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 341).

Cited in Ponder v. Foster, 23 Ga. 489 (1857); Goodwin v. Bowers, 169 Ga. 36 , 149 S.E. 567 (1929); Burns v. Phillips, 50 F.R.D. 187 (N.D. Ga. 1970).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 217 et seq.

C.J.S. - 39 C.J.S., Guardian and Ward, § 274 et seq.

ALR. - Capacity of guardian to sue or to be sued outside state where appointed, 94 A.L.R.2d 162.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2570, former Civil Code 1910, § 3089, former Code 1933, § 49-601, as it read prior to revision by Ga. L. 1964, pp. 499, 657, and former O.C.G.A. § 29-5-1 are included in the annotations for this Code section.

All insane persons covered. - Former Code 1933, § 49-601 was broad enough to cover all classes of insane persons, resident and nonresident. Shea v. Gehan, 70 Ga. App. 229 , 28 S.E.2d 181 (1943) (decided under former Code 1933, § 49-601).

Definition and classifications of insane persons. - See Royal Indem. Co. v. Agnew, 66 Ga. App. 377 , 18 S.E.2d 57 (1941) (decided under former Code 1933, § 49-601).

Blindness and limited education not grounds for appointment of guardian. - There is no provision of law in this state for appointment of guardian for a person sui juris solely on ground of blindness and limited education. Griffin v. Collins, 122 Ga. 102 , 49 S.E. 827 (1905) (decided under former Code 1895, § 2570).

Probate judges have exclusive jurisdiction to appoint for insane persons. - Only ordinaries (now judges of probate courts) of the several counties of this state have power to appoint for insane persons. Meadors v. Walden, 28 Ga. App. 409 , 111 S.E. 227 (1922) (decided under former Code 1910, § 3089).

Claimant suffering from Alzheimer's disease. - Default would not be entered against a claimant in a bankruptcy proceeding because there was some evidence that the claimant might be suffering from Alzheimer's disease, and a bankruptcy trustee needed to determine if a conservator or a guardian had been appointed for the claimant, pursuant to O.C.G.A. § 29-4-1 or O.C.G.A. § 29-5-1 , in a state probate court before default could be entered. Townson v. Loftin (In re Ford), Bankr. (Bankr. N.D. Ga. Mar. 3, 2009).

Probate court vested with original, exclusive, and general jurisdiction. - Court of ordinary (now probate court) was vested with original, exclusive, and general jurisdiction over insane persons and the appointment and removal of their guardians. Shea v. Gehan, 70 Ga. App. 229 , 28 S.E.2d 181 (1943) (decided under former Code 1933, § 49-601).

May commit insane person present in county. - Court of ordinary (now probate court) has jurisdiction to adjudge and have committed an insane person who is present in that county in keeping with law in general relative to power of state over persons found within its borders as provided in former Code 1933, § 15-202 (former O.C.G.A. § 50-2-21 ). Shea v. Gehan, 70 Ga. App. 229 , 28 S.E.2d 181 (1943) (decided under former Code 1933, § 49-601).

May appoint guardian for in-state land of nonresident insane person. - Courts of ordinary (now probate courts) of this state have jurisdiction to appoint guardians for lands of lunatics who reside beyond limits of this state, where property is located in territorial limits of state in which such courts act. Coker v. Gay, 154 Ga. 337 , 114 S.E. 217 (1922) (decided under former Civil Code 1910, § 3089).

May authorize guardian to sell ward's land to pay debts. - Court of ordinary (now probate court) is vested by law with jurisdiction to render judgment granting to guardian of insane person permission to sell land belonging to such ward for purpose of paying debts; proceedings in such case to be in conformity with statutes relating to sales by administrators. Jernigan v. Radford, 182 Ga. 484 , 185 S.E. 828 (1936) (decided under former Code 1933, § 49-601).

Applicability of Code sections pertaining to guardians of minors. - All provisions of Code as to settlements of guardians of minors, their resignation, letters of dismission, and distribution of estates of deceased wards, also apply to guardians appointed under former Civil Code 1910, § 3089 (former O.C.G.A. § 29-5-1 ). Shadburn v. Verner, 169 Ga. 5 , 149 S.E. 579 (1929) (decided under former Civil Code 1910, § 3089).

Appointment of guardian does not mandate eligibility for commitment. - One may be eligible to have guardian even if ineligible for admission as inmate of Milledgeville State Hospital. Tucker v. American Sur. Co., 78 Ga. App. 327 , 50 S.E.2d 859 (1948) (decided under former Code 1933, § 49-601).

Evidence sufficient to appoint guardian and conservator. - Order granting sons' petition for guardianship and conservatorship of their mother pursuant to O.C.G.A. §§ 29-4-1 and 29-5-1(a) was proper because the evidence included, inter alia, the testimony of one of the sons as to his personal knowledge regarding his mother's physical problems, her refusal to either relocate or to hire a private care giver, and her failure to pay her bills; the evidence also included a social worker's evaluation which detailed the mother's erratic behavior and her refusal to pay her bills, which the trial court properly considered pursuant to O.C.G.A. § 29-5-12(d)(4). In re Cash, 298 Ga. App. 110 , 679 S.E.2d 124 (2009).

Evidence sufficient to appoint father as guardian of adult autistic son. - Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son's desire to change domicile to the father's home, the son's desire to engage in more activities while at the father's home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son's domicile. In the Interest of M. P., 338 Ga. App. 696 , 791 S.E.2d 592 (2016).

Cited in Fuller v. Weekes, 105 Ga. App. 790 , 125 S.E.2d 662 (1962); Troup v. Troup, 248 Ga. 662 , 285 S.E.2d 19 (1981); Snider v. Lavender, 164 Ga. App. 591 , 298 S.E.2d 582 (1982); Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); Cummings v. Stanford, 193 Ga. App. 695 , 388 S.E.2d 729 (1989); Epperson v. Epperson, 212 Ga. App. 420 , 442 S.E.2d 12 (1994); Doob v. Atkinson, 232 Ga. App. 471 , 500 S.E.2d 657 (1998); Trammel v. Bradberry, 256 Ga. App. 412 , 568 S.E.2d 715 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-601 are included in the annotations for this Code section.

Court cannot appoint guardian for one rational but arthritic. - Probate court would have no authority to name guardian for one who is perfectly rational but is only afflicted with arthritis. 1960-61 Op. Att'y Gen. p. 88 (decided under former Code 1933, § 49-601).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 21 et seq., 37, 56 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 42 et seq.

138 Am. Jur. Trials, Guardianships, § 18 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 125 et seq.

ALR. - Appointment of guardian for infant as affecting rights and duties of parents, 63 A.L.R. 1147 .

Power of guardian representing unborn future interest holders to consent to invasion of trust corpus, 49 A.L.R.2d 1095.

Mental condition which will justify the appointment of guardian, committee, or conservator of the estate for an incompetent or spendthrift, 9 A.L.R.3d 774.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2 (c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Cited in Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 41, 42, 43, 46 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Failure to explain reason for selection of county guardian. - Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2 (c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Cited in Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284 , 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 40 et seq.

C.J.S. - 57 C.J.S., Mental Health, § 135 et seq.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Code 1933, § 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Names and addresses of adult children of ward. - Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Stepchildren are not included in "children." - A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234 , 392 S.E.2d 5 (1990) (decided under former O.C.G.A. § 29-5-6).

Guardian appointment for person of nonresident insane person within county. - Probate courts of this state have jurisdiction to appoint a guardian for person of nonresident insane person if nonresident is found within limits of county of probate court's jurisdiction. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Probate court of Cobb County did not lack jurisdiction over proceedings involving ward who was a Stephens County resident but had been transferred to a convalescent center in Cobb County, where it was uncontroverted that no plea to the court's jurisdiction was filed and that ward was at the time of the proceeding "found " in Cobb County. Smith v. Young, 187 Ga. App. 191 , 369 S.E.2d 798 (1988) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding. - Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532 , 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351 , 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Motion to intervene not required. - It was not error for the probate court to permit the Department of Human Resources to intervene in guardianship proceedings without requiring it to file a motion to intervene. In re Martin, 218 Ga. App. 79 , 460 S.E.2d 304 (1995) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence. - Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial. - Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695 , 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Mental capacity to petition for appointment of guardian. - A person receiving social security disability benefits based on a mental disability, who had not been adjudicated to be incapacitated, was not disqualified to petition for appointment of a guardian for mother. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Mental capacity for selection of domicile. - Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son's desire to change domicile to the father's home, the son's desire to engage in more activities while at the father's home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son's domicile. In the Interest of M. P., 338 Ga. App. 696 , 791 S.E.2d 592 (2016).

Court where alleged insane person lives may have jurisdiction. - The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited. - For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968) (decided under former Code 1933, § 49-604); Trapnell v. Smith, 131 Ga. App. 254 , 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Cited in Fuller v. Weekes, 105 Ga. App. 790 , 125 S.E.2d 662 (1962); Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 59 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 9 et seq.

138 Am. Jur. Trials, Guardianships, § 15 et seq.

C.J.S. - 56 C.J.S., Mental Health, § 24 et seq. 57 C.J.S., Mental Health, § 125 et seq.

ALR. - May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Code 1933, § 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Requiring notice is to protect public and alleged incompetent. - The object of former Code 1933, § 49-604 in requiring notice to relatives was not to confer any right upon them, but was solely for the purpose of protecting public and interest of alleged incompetent. Phillips v. Phillips, 202 Ga. 776 , 44 S.E.2d 767 (1947) (decided under former Code 1933, § 49-604).

Relations notified are not parties in their own behalf but are notified for benefit of person to be considered and given an opportunity to be heard in that person's behalf. They are not summoned by process; no judgment can be rendered against them merely because of such notice; and there is no provision for taxing costs against them. Slaughter v. Heath, 127 Ga. 747 , 57 S.E. 69 , 27 L.R.A. (n.s.) 1 (1907) (decided under former Code 1895, § 2573).

Names and addresses of adult children of ward. - Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Stepchildren are not included in "children." - A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234 , 392 S.E.2d 5 (1990) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding. - Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532 , 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351 , 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence. - Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Requirements for petition at trial. - Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695 , 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction. - The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited. - For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968); Trapnell v. Smith, 131 Ga. App. 254 , 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604);(decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Evaluation required after initial probable cause found. - Probate court, having initially determined that there was probable cause to warrant filing of a petition for guardianship or conservatorship, erred in dismissing the petition without requiring an evaluation of the proposed ward as mandated by O.C.G.A. §§ 29-4-11 and 29-5-11 ; the ward's refusal to speak to the evaluator without counsel present meant the evaluation should have been rescheduled. In re Estate of Davis, 330 Ga. App. 97 , 766 S.E.2d 550 (2014).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void. - When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Cited in Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of former O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, §§ 23, 41, 53.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 72 et seq.

C.J.S. - 56 C.J.S., Mental Health, § 24 et seq. 57 C.J.S., Mental Health, § 125 et seq.

ALR. - May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1895, § 2573, former Code 1933, § 49-604, as it read prior to its amendment by Ga. L. 1964, p. 499, § 68, and as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Proceedings in probate court only governed by recording requirement in former O.C.G.A. § 29-5-6(e)(2) and on de novo appeal from probate court decision on guardianship petition, superior court may, but was not required to, have the hearing reported. Snider v. Lavender, 164 Ga. App. 591 , 298 S.E.2d 582 (1982) (decided under former O.C.G.A. § 29-5-6).

Names and addresses of adult children of ward. - Even though it was shown that a petitioner for appointment as guardian failed to name an adult child of the ward, because petitioner did not know the child's address, and included another child's residence address on the petition, rather than the county jail where petitioner knew that child was incarcerated, failure to comply with statutory notice requirements was not established. Johnson v. Jones, 214 Ga. App. 386 , 448 S.E.2d 1 (1994) (decided under former O.C.G.A. § 29-5-6).

Guardian appointment for person of nonresident insane person within county. - Probate courts of this state have jurisdiction to appoint a guardian for person of nonresident insane person if nonresident is found within limits of county of probate court's jurisdiction. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Probate court of Cobb County did not lack jurisdiction over proceedings involving ward who was a Stephens County resident but had been transferred to a convalescent center in Cobb County, where it was uncontroverted that no plea to the court's jurisdiction was filed and that ward was at the time of the proceeding "found " in Cobb County. Smith v. Young, 187 Ga. App. 191 , 369 S.E.2d 798 (1988) (decided under former O.C.G.A. § 29-5-6).

Third party intervention in probate court proceeding. - Third party is not prohibited from intervention in a probate court guardianship proceeding. Kipp v. Rawson, 193 Ga. App. 532 , 388 S.E.2d 409 (1989) (decided under former O.C.G.A. § 29-5-6).

Grandson did not have the right to intervene in proceedings by children for the appointment of a guardian for their mother. White v. Heard, 225 Ga. App. 351 , 484 S.E.2d 12 (1997) (decided under former O.C.G.A. § 29-5-6).

Motion to intervene not required. - It was not error for the probate court to permit the Department of Human Resources to intervene in guardianship proceedings without requiring it to file a motion to intervene. In re Martin, 218 Ga. App. 79 , 460 S.E.2d 304 (1995) (decided under former O.C.G.A. § 29-5-6).

Mental incompetent is entitled to hearing in county of residence. - Where person files application for appointment of guardian of allegedly mentally incompetent state resident, the latter is entitled to have application for guardianship heard in probate court of county of his or her residence. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Where representative of alleged incompetent files plea to court's jurisdiction on ground that alleged incompetent is resident of another county, the plea should be sustained if it is determined that alleged incompetent is, in fact and in law, a resident of the other county. Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former O.C.G.A. § 29-5-6).

Court where alleged insane person lives may have jurisdiction. - The court of ordinary (now probate court) of county in which alleged insane person is living and who becomes violent and liable to incur personal injury has jurisdiction notwithstanding fact that residence of such alleged insane person may be in some other county in this state. Anderson v. Smith, 76 Ga. App. 171 , 45 S.E.2d 282 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9 , 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

Inquiry into capacity to manage own estate is limited. - For the type of examination inquiring into one's capacity to manage own estate, jurisdiction of ordinary (now judge of probate court) is extremely limited, proceedings are summary and must be strictly construed. Milam v. Terrell, 214 Ga. 199 , 104 S.E.2d 219 (1958) (decided under former Code 1933, § 49-604); Boockholdt v. Brown, 224 Ga. 737 , 164 S.E.2d 836 (1968); Trapnell v. Smith, 131 Ga. App. 254 , 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604);(decided under former Code 1933, § 49-604).

In proceedings brought under former Code 1933, § 49-604 to inquire into one's capacity to manage own estate, jurisdiction of courts of ordinary (now probate courts) was extremely limited. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (decided under former Code 1933, § 49-604).

Evaluation required after initial probable cause is found. - Probate court, having initially determined that there was probable cause to warrant filing of a petition for guardianship or conservatorship, erred in dismissing the petition without requiring an evaluation of the proposed ward as mandated by O.C.G.A. §§ 29-4-11 and 29-5-11 ; the ward's refusal to speak to the evaluator without counsel present meant the evaluation should have been rescheduled. In re Estate of Davis, 330 Ga. App. 97 , 766 S.E.2d 550 (2014).

Notice to nearest relatives of alleged mental incompetent is insufficient. Edwards v. Lampkin, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

When notice is insufficient, all proceedings under section are void. - When court of ordinary was without jurisdiction due to insufficiency of notice, all subsequent proceedings in cause brought under former Code 1933, § 49-604, including appointment of guardian, were void. Edwards v. Lampkin, 112 Ga. App. 128 , 144 S.E.2d 119 , aff'd, 221 Ga. 486 , 145 S.E.2d 518 (1965) (decided under former Code 1933, § 49-604).

Failure to have hearing recorded impacts appeal. - Absent a record of the hearing, the appellate could not determine whether the probate court's finding that appellant was incapable of managing appellant's estate was supported by clear and convincing evidence; accordingly, because the probate court failed to have the hearing recorded or reported, appellant was effectively denied appellant's right to appeal the probate court's decision. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

Standing to appeal from grant of petition. - Where the probate court granted wife's petition for guardianship over her husband, the superior court correctly dismissed an appeal by the adult children of the husband because they did not file a petition for guardianship under former O.C.G.A. § 29-5-6 and did not hold any other status under former O.C.G.A. § 29-5-11(a) . Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999); In the Interest of M. P., 338 Ga. App. 696 , 791 S.E.2d 592 (2016).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 69.

C.J.S. - 39 Am. Jur. 2d, Guardian and Ward, § 69. 56 C.J.S., Mental Health, § 24 et seq. 57 C.J.S., Mental Health, § 125 et seq.

ALR. - May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-6 have been included in the annotations for this Code section.

Ward's visitation with father. - Probate court had the authority to establish a set visitation schedule between an adult mentally disabled ward and the ward's father in order to protect the ward's rights and best interests under the broad powers granted in O.C.G.A. §§ 15-9-30(a) , 29-4-40 , and 29-4-41 , despite the mother's/guardian's objection to the visitation. In re Estate of Wertzer, 330 Ga. App. 294 , 765 S.E.2d 425 (2014).

Failure to have hearing recorded impacts appeal. - Absent a record of the hearing, the appellate could not determine whether the probate court's finding that appellant was incapable of managing appellant's estate was supported by clear and convincing evidence; accordingly, because the probate court failed to have the hearing recorded or reported, appellant was effectively denied appellant's right to appeal the probate court's decision. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

Standing to appeal from grant of petition. - Where the probate court granted wife's petition for guardianship over her husband, the superior court correctly dismissed an appeal by the adult children of the husband because they did not file a petition for guardianship under former O.C.G.A. § 29-5-6 and did not hold any other status under former O.C.G.A. § 29-5-11(a) . Twitty v. Akers, 218 Ga. App. 467 , 462 S.E.2d 418 (1995) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401 , 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes. - In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

Appointment of guardian for property of mentally incompetent nonresident. - A probate court in Georgia may appoint a guardian of the property of a nonresident who is alleged to be mentally incompetent only if: (1) the nonresident has purposely established sufficient minimum contacts with Georgia; (2) there is compliance with O.C.G.A. § 9-10-91 , Georgia's Long Arm Statute; and (3) the criteria and procedures of O.C.G.A. Title 29, Chapter 5 are strictly followed. 1986 Op. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

Cannot appoint guardian for rational but physically incapacitated. - Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

Guardianship termination order filing requirement. - The requirement of O.C.G.A. § 29-5-6 that a certified copy of a guardianship termination order over an incapacitated person or over the property of an incapacitated person be filed in each county in which lies real property of the guardianship applies to a termination order issued upon the death of the incapacitated ward. 1989 Op. Att'y Gen. U89-12 (decided under former O.C.G.A. § 29-5-6).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Guardian and Ward, § 38 et seq.

C.J.S. - 39 Am. Jur. 2d, Guardian and Ward, § 31 et seq. 56 C.J.S., Mental Health, § 22 et seq. 57 C.J.S., Mental Health, § 125 et seq.

ALR. - May proceedings to have a person declared insane and to appoint conservator of committee of his person or estate rest upon substituted or constructive service of process, 77 A.L.R. 1227 ; 175 A.L.R. 1324 .

Construction and application of statute prescribing that notice of petition or hearing for appointment of guardian be of such nature or be given to such persons as court deems reasonable or proper, 109 A.L.R. 338 .

Right of appeal in proceeding for restoration to competency, 122 A.L.R. 541 .

Necessity and sufficiency of notice to infant or other incompetent of application for appointment of successor to guardian on committee, 138 A.L.R. 1364 .

Waiver by alleged incompetent of notice of inquisition proceeding or proceeding for appointment of guardian, 152 A.L.R. 1247 .

Validity of guardianship proceeding based on brainwashing of subject by religious, political, or social organization, 44 A.L.R.4th 1207.