Law reviews. —

For annual survey of law of wills, trusts, guardianships, and fiduciary administration, see 56 Mercer L. Rev. 457 (2004).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 61 Mercer L. Rev. 385 (2009).

CHAPTER 1 General Provisions

Editor’s notes. —

Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides: “all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

39 C.J.S., Guardian and Ward, § 1 et seq.

Am. Jur. Trials. —

138 Am. Jur. Trials, Guardianships, §§ 1 et seq., 59.

29-1-1. Definitions.

Except as otherwise provided, as used in this title, the term:

  1. “Adult” means an individual who is either 18 years of age or older or an emancipated minor.
  2. “Conservator” includes a guardian of the property appointed prior to July 1, 2005, but shall not include a conservator of the estate of an individual who is missing or believed to be dead, as defined in Article 2 of Chapter 9 of Title 53 or a foreign conservator as defined in Part 4 of Article 10 of Chapter 3 and Part 4 of Article 13 of Chapter 5 of this title.
  3. “County guardian” means an individual described in Chapter 8 of this title.
  4. “Court” means the probate court.
  5. “Emergency conservator” means an individual appointed pursuant to the provisions of Code Section 29-5-15.
  6. “Emergency guardian” means an individual appointed pursuant to the provisions of Code Section 29-4-14.
  7. “Guardian” means an individual appointed pursuant to the provisions of this title and includes a guardian of the person appointed prior to July 1, 2005, but shall not include a guardian ad litem.
  8. “Guardian ad litem” means an individual appointed pursuant to the provisions of Code Section 29-9-2.
  9. “Interested person” means any person who has an interest in the welfare of a minor, ward, or proposed ward, or in the management of that individual’s assets and may include a governmental agency paying or planning to pay benefits to that individual.
  10. “Licensed clinical social worker” means a social worker who is licensed in accordance with the provisions of Chapter 10A of Title 43.
  11. “Minor” means an individual who is under 18 years of age and who is not emancipated.
  12. “Natural guardian” means an individual defined by the provisions of Code Section 29-2-3.
  13. “Parent” means a biological or adoptive father or mother whose parental rights have not been surrendered or terminated and, in the case of a child born out of wedlock, the individual or individuals who are entitled to have custody of and exercise parental power over the child pursuant to Code Section 19-7-25.
  14. “Permanent guardian” means an individual appointed as guardian of a minor pursuant to Part 5 of Article 1 of Chapter 2 of this title.
  15. “Personal representative” means an executor, administrator, successor, personal representative, or the duly qualified and acting personal representative of the estate of a decedent.
  16. “Proposed ward” means an adult for whom a petition for the appointment of a guardian or a conservator has been filed.

    (16.1) “Public guardian” means an individual or private entity, including a nonprofit entity, appointed pursuant to Chapter 10 of this title.

  17. “Standby guardian” means an individual appointed pursuant to Part 4 of Article 1 of Chapter 2 of this title.
  18. “Successor conservator” means an individual who has been appointed as conservator pursuant to Code Section 29-3-91 or 29-5-101.
  19. “Successor guardian” means an individual who has been appointed as guardian pursuant to Code Section 29-2-51 or 29-4-61.
  20. “Sui juris” means an adult who is not suffering from any legal disability.
  21. “Temporary guardian” means an individual who is appointed as a guardian for a minor in accordance with the provisions of Part 3 of Article 1 of Chapter 2 of this title.
  22. “Temporary substitute conservator” means an individual who has been appointed as conservator pursuant to Code Section 29-3-90 or 29-5-100.
  23. “Temporary substitute guardian” means an individual who has been appointed as guardian pursuant to Code Section 29-2-50 or 29-4-60.
  24. “Testamentary conservator” means a person who has been issued letters of conservatorship pursuant to Code Section 29-3-5.
  25. “Testamentary guardian” means a person who has been issued letters of guardianship pursuant to Code Section 29-2-4.
  26. “VA guardian” means a person appointed pursuant to the provisions of Chapter 7 of this title.
  27. “Ward” means an adult for whom a guardian or conservator has been appointed.

History. — Code 1981, § 29-1-1 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2005, p. 509, § 1/HB 364; Ga. L. 2019, p. 1056, § 29/SB 52.

The 2019 amendment, effective May 12, 2019, part of an Act to revise, modernize, and correct the Code, substituted “letters of conservatorship” for “letters of guardianship” in paragraph (24).

Editor’s notes. —

Ga. L. 2005, p. 509, § 9/HB 364, not codified by the General Assembly, provides that: “This Act shall become effective on July 1, 2005, and all appointments of guardians of the person made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

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).

RESEARCH REFERENCES

Am. Jur. Trials. —

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

CHAPTER 2 Guardians of Minors

Cross references. —

Attorneys and guardians ad litem, § 15-11-98.

Child custody proceedings generally, § 19-9-1 et seq.

Claim by guardian or trustee of mental incompetent or minor, § 34-9-85 .

Appointment of guardian for minor for purposes of administering workers’ compensation benefits to which minor is entitled, § 34-9-226 .

Rights and privileges of patients, and their representatives, T. 37, C. 3, Art. 6.

Editor’s notes. —

Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides: “all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

Law reviews. —

For article, “The Georgia Law of Insanity,” see 3 Ga. B. J. 28 (1941).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

For note on 1995 amendments of sections in this chapter, see 12 Ga. St. U.L. Rev. 216 (1995).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former law are included in the annotations for this Code section.

Persons dealing with guardian should examine guardian’s authority. —

A guardian is in effect a special agent of the law to manage the estate of a person non sui juris, and it is incumbent upon all persons dealing with the guardian to examine the guardian’s authority. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 (1934) (decided under former law).

Guardian cannot use funds to pay third party’s debt. —

Guardian cannot, with or without court order, use minor ward’s funds to pay third party’s debt; nor is the guardian authorized without such an order to invest the funds of the ward in bonds issued by a private corporation. Where the guardian attempts to do either, and tenders to the opposite party in the transaction, as payee, a check bearing the signature of the ward by the guardian, these facts without more are sufficient to put the payee on inquiry as to the validity of the transaction. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 (1934) (decided under former law).

Office of guardian of minor expires by operation of law when ward attains majority. Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4 , 177 S.E. 803 (1934) (decided under former law).

Person cannot obliterate acts incident to former guardianship. —

Person of normal mental faculties cannot, after attaining majority, obliterate all transactions incident to former guardianship, and disregard all impressions received therefrom, merely because they related to events which occurred during minority. Brinsfield v. Robbins, 183 Ga. 258 , 188 S.E. 7 (1936) (decided under former law).

OPINIONS OF THE ATTORNEY GENERAL

Editor’s notes. — In light of the similarity of the statutory provisions, opinions under former law are included in the annotations for this Code section.

The age of majority as to guardianships created prior to July 1, 1972 is 21. 1972 Op. Atty Gen. No. U72-37 (decided under former law).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardians and Wards, § 5 et seq.

Am. Jur. Trials. —

138 Am. Jur. Trials, Guardianships, §§ 3, 5, 42 et seq., 59.

ALR. —

Validity of appointment of guardian or curator for infant without service of process upon, or notice to, latter, 1 A.L.R. 919 .

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

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

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

Surchargeability of trustee, executor, administrator, or guardian, in respect of mortgage investment, as affected by matters relating to value of property, 117 A.L.R. 871 .

Right of trustee or guardian to invest trust funds in stock of private corporation, 122 A.L.R. 657 .

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 .

Right of guardian of infant or incompetent to appointment as executor or administrator as representative or substitute for infant or incompetent, 135 A.L.R. 585 .

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

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, 161 A.L.R. 1038 .

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

Liability of incompetent’s estate for torts committed by guardian, committee, or trustee in managing estate, 40 A.L.R.2d 1103.

Right of foreign personal representative or guardian to vote stock owned by estate or ward, 41 A.L.R.2d 1082.

Power of court to confirm sale of ward’s property over objection of guardian, 43 A.L.R.2d 1445.

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

Authorization by trust instrument of investment of trust funds in nonlegal investments, 78 A.L.R.2d 7.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 A.L.R.2d 483.

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

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.

Judgment in guardian’s final accounting proceedings as res judicata in ward’s subsequent action against guardian, 34 A.L.R.4th 1121.

Guardian’s authority, without seeking court approval, to exercise ward’s right to revoke trust, 53 A.L.R.4th 1297.

Validity of inter vivos gift by ward to guardian or conservator, 70 A.L.R.4th 499.

Involuntary disclosure or surrender of will prior to testator’s death, 75 A.L.R.4th 1144.

Article 1 Minors

PART 1 General Provisions

29-2-1. Categories of guardians for minors.

Guardians of minors may be categorized as follows:

  1. Natural guardians;
  2. Testamentary guardians;
  3. Temporary guardians;
  4. Standby guardians; and
  5. Permanent guardians.

History. — Code 1981, § 29-2-1 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Law reviews. —

For survey article citing developments in Georgia juvenile court practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 167 (1981).

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).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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

Am. Jur. Trials. —

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.

29-2-2. Qualified individuals to serve as guardian of minor.

  1. Only an individual may serve as guardian of a minor.
  2. No individual may be appointed as guardian of a minor who:
    1. Is a minor, a ward, or a protected person; or
    2. Has a conflict of interest with the minor unless the court determines that the conflict of interest is insubstantial or that the appointment would be in the minor’s best interest.

History. — Code 1981, § 29-2-2 , enacted by Ga. L. 2004, p. 161, § 1.

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.

Am. Jur. Pleading and Practice Forms. —

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.

PART 2 Parental Rights in Guardian Selection

29-2-3. Guardian of minor children in event of divorce; death of spouse or former spouse.

  1. For purposes of this Code section, the terms “joint legal custody” and “sole custody” shall have the meanings as provided in Code Section 19-9-6.
  2. Except as otherwise provided in this chapter, each parent shall be the natural guardian of any minor child of the parent, except that, if the parents are divorced and one parent has sole custody of the minor, that parent is the sole natural guardian of that minor. If the parents have joint legal custody, both parents are the natural guardians of that minor.
  3. If one parent of a minor dies, the surviving parent is the sole natural guardian of the minor, even if the parents were divorced and the deceased parent had sole custody of the minor.

History. — Code 1981, § 29-2-3 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Parent and child relationship generally, § 19-7-1 et seq.

Circumstances justifying removal of child from parental custody, § 19-7-4 .

Law reviews. —

For article, “Trusts for Dependents: Effect of Georgia’s Support Obligation on Federal Income Taxation,” see 8 Ga. St. B.J. 323 (1972).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1794, former Code 1895, § 2513, former Civil Code 1910, § 3032, former Code 1933, § 49-102, and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.

O.C.G.A. § 19-7-1 and former O.C.G.A. § 29-4-2 must be construed together. —

See McCallum v. Bryant, 212 Ga. 348 , 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).

Necessity for appointing guardian ad litem. —

Whenever a minor appears as a petitioner in instituting litigation by a next friend, there would seem to be no legal necessity to appoint a guardian ad litem, unless, for some reason, it should be made to appear to the court that the next friend is not a suitable person or for some other reason interests of minor would not be properly protected. Sanders v. Hinton, 171 Ga. 702 , 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3032).

Binding in courts of law and equity. —

Former Code 1868, § 1794 (former O.C.G.A. § 29-4-2 ) was for protection of rights of minor children and was as imperative and binding in courts of equity as in courts of law. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).

For discussion of scope of natural guardianship, see Jordan v. Smith, 5 Ga. App. 559 , 63 S.E. 595 (1909) (decided under former Code 1895, § 2513).

Imbecile minor presents no exception to this rule. Brown v. Gibson, 203 Ga. 213 , 46 S.E.2d 68 (1948) (decided under former Code 1933, § 49-102).

Ward without recourse cannot be bound. —

When child has no recourse against representative, then authority to bind child cannot exist. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 , 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).

Rights of Natural Guardian

Cannot appoint guardian of person unless natural guardian lost status. —

The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status has been ascertained and declared in some regular proceeding authorized by law, after due notice is given. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ).

When natural mother of illegitimate child showed that she was the child’s mother, that her parental rights had not been relinquished or forfeited in some regular proceeding authorized by law, and that she was, therefore, the natural guardian of the child, the probate court was without jurisdiction to appoint someone else as the guardian of the child’s person. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ).

Mother of illegitimate child is the child’s natural guardian with prima-facie right to custody. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ); Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989) (decided under former O.C.G.A. § 29-4-2 ).

Surviving parent’s right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).

Parent may forfeit rights as guardian by cruel treatment. —

Father has right to be guardian of his minor children, but he may forfeit such right by cruel treatment or neglect of them. McCallum v. Bryant, 212 Ga. 348 , 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).

Parental rights not relinquished by custody agreement. —

Although the petitioner argued the appointment of guardianship was proper because the mother, the natural guardian of the minor children involved, had voluntarily waived her parental rights and consented to the award of guardianship by sworn affidavit, the affidavit clearly conferred only temporary custody, and made no reference to permanent guardianship. Parental rights are not relinquished by an agreement granting mere custody. Hill v. Loren, 187 Ga. App. 71 , 369 S.E.2d 260 (1988) (decided under former O.C.G.A. § 29-4-2 ).

Custody right under divorce decree inures to surviving parent. —

Upon death of parent who has held custody under divorce decree, the right to custody automatically inures to surviving parent, and divorce proceeding fails so far as concerns any further right to custody of children. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).

Natural guardian may not sign away child’s chose of action. —

A chose in action is property and a natural guardian has no more authority to sign it away than the guardian would have to sell tangible property of child. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 , 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).

Bond

Requirement of bond applies to income of property and corpus. —

Provision of former Code 1868, § 1794 (former O.C.G.A. § 29-4-2 ), requiring that guardian give bond before the guardian can demand and receive property of child, applied to income of property as well as to corpus thereof. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).

Effect of giving bond by natural guardian. —

The only effect of giving bond by natural guardian is to empower the guardian to demand and receive any property belonging to the child. Drake v. Drake, 187 Ga. 423 , 1 S.E.2d 573 (1939) (decided under former Code 1933, § 49-102).

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. Atty 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. Atty 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.

Am. Jur. Pleading and Practice Forms. —

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 .

29-2-4. Nomination of testamentary guardian; no bond or security required.

  1. Every parent, by will, may nominate a testamentary guardian for the parent’s minor child.
    1. Unless the minor has another living parent, upon probate of the minor’s parent’s will, letters of guardianship shall be issued to the individual nominated in the will who shall serve as testamentary guardian without a hearing provided that the individual is willing to serve and no objection is filed. If a timely objection is filed, letters of guardianship shall only be issued after a hearing held pursuant to paragraph (4) of this subsection.
    2. At the time such will is offered for probate, notice of the testamentary guardianship shall be served by certified mail or statutory overnight delivery, return receipt requested, to the minor child’s adult siblings and grandparents. If such child does not have adult siblings or grandparents, such notice shall be served on such child’s great-grandparents, aunts, uncles, great aunts, or great uncles, insofar as any such relative exists.
    3. Any person who receives a notice pursuant to this subsection and objects to the appointment of the nominated testamentary guardian shall file an objection with the court within ten days of being served with notice. Such objection shall include allegations and facts with reasonable specificity stating why the nominated testamentary guardian is unfit to serve.
    4. If a timely objection is filed, the court shall conduct an expedited hearing within 30 days of the date of the filing of the last objection. The hearing shall be conducted in accordance with Code Section 29-2-14. The court shall award the letters of guardianship to the nominated testamentary guardian unless the objecting party establishes by clear and convincing evidence that the nominated testamentary guardian is unfit to serve as testamentary guardian.
    5. Any proceeding relating to the appointment of a testamentary guardian shall not affect or delay the probating of a will.
  2. A testamentary guardian shall not be required to give bond or security. In all other respects a testamentary guardian shall have the same rights, powers, and duties as a permanent guardian appointed by the court.

History. — Code 1981, § 29-2-4 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2014, p. 780, § 4-1/SB 364.

Cross references. —

Disability of minors with regard to disposal of property generally, § 1-2-8 .

Amount of bond required from guardian of property in probate proceedings, § 53-7-34 (Pre-1998 Probate Code).

Law reviews. —

For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. L. 1851-52, p. 101, § 1, former Code 1882, § 1804, former Civil Code 1895, § 2514, former Civil Code 1910, § 3033, and former Code 1933, § 49-103 are included in the annotations for this Code section.

Statutes providing for appointment of guardians for minor children. —

The general assembly by inclusion of word “minor ” at one place and its exclusion at another did not intend that a parent might, by will, appoint a guardian for property of children who had reached their majority. Therefore, former Code 1933, § 49-103 (former O.C.G.A. § 29-4-3 ) only provided for appointment of guardians for persons and/or property of minor children. Adams v. Lay, 218 Ga. 451 , 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Citation unnecessary in appointing guardian already appointed testamentary guardian. —

In appointing one as guardian of minors, who has already been appointed as testamentary guardian in their father’s will, citation, as ordinarily required by law, is unnecessary. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Parental power does not include power to appoint testamentary guardian. —

One awarded parental power over minor has no power to appoint testamentary guardian for such minor. Lamar v. Harris, 117 Ga. 993 , 44 S.E. 866 (1903) (decided under former Civil Code 1895, § 2514).

Only surviving parent may appoint guardian of person of minor. Adams v. Lay, 218 Ga. 451 , 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Surviving parent’s right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-103).

Custody does not include power to appoint testamentary guardian. —

Judgment or decree of divorce which gives custody and education of child of marriage to wife, does not empower her to appoint a testamentary guardian for that child while the father survives. Taylor v. Jeter, 33 Ga. 195 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian cannot, by will, transfer custody of the ward to another. Taylor v. Jeter, 33 Ga. 195 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian is still guardian of the person though dismissed for waste or failure to give bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Guardians appointed by will remain in place. —

Probate court did not err in issuing letters of testamentary guardianship to the brother of a father’s children because O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother without notice and a hearing and without consideration of the best interests of the children; both the mother and father nominated the brother as the children’s testamentary guardian in their respective wills, the brother consented to serve as the guardian, the wills were admitted in solemn form, no petition was filed to set aside the probate court order admitting their wills, and the probate court did not revoke the court’s letters of testamentary guardianship to the brother. Zinkhan v. Bruce, 305 Ga. App. 510 , 699 S.E.2d 833 (2010), cert. denied, No. S10C2049, 2011 Ga. LEXIS 138 (Ga. Feb. 7, 2011).

Grandparent named as testamentary guardian should prevail. —

When both parents of infant child are deceased, father having survived mother and by will having provided that his mother should be testamentary guardian of the person of such child, and when in contest between paternal and 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 custody. Shanks v. Ross, 173 Ga. 55 , 159 S.E. 700 (1931) (decided under former Civil Code 1910, § 3033).

Bond

When bond required. —

Bond and security is required from all general guardians appointed by the ordinary (now judge of probate court) and the ordinary has discretionary power to require additional bond and security when the estate of the ward is enlarged by subsequent acquisition. Huson v. Green, 88 Ga. 722 , 16 S.E. 255 (1892) (decided under former Code 1882, § 1804).

Probate court may authorize testamentary guardian to take charge of minor’s estate without requiring bond. —

Nothing in the law indicates that court of ordinary (now probate court) is without jurisdiction to authorize testamentary guardian to take charge of minor’s estate without requiring bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Probate court failing to require bond can, nonetheless, issue letters of guardianship. —

Failure to require bond when property comes to ward from sources other than parent’s will does not deprive probate court of original jurisdiction to issue letters of guardianship which cannot be collaterally attacked. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Letters of guardianship not null and void due to failure to require bond. —

Issuance of letters of guardianship was not null and void because of failure of probate court to require bond from guardian as required by former Code 1910, § 3033 (former O.C.G.A. § 29-4-3(c) ) where property came to ward from sources other than parent’s will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

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.

PART 3 Temporary Guardianship of Minors

29-2-5. Petitions for temporary guardianship; requirements of petition.

  1. A petition to be appointed the temporary guardian of a minor may be filed by an individual who has physical custody of the minor.
  2. The petition shall be filed in the probate court of the county of domicile of the petitioner; however, if the petitioner is not a domiciliary of this state, the petition may be filed in the probate court of the county where the minor is found.
  3. A petition for the appointment of a temporary guardian shall include the following:
    1. The name, address, and date of birth of the minor;
    2. The name and address of the petitioner and the petitioner’s relationship to the minor, if any;
    3. A statement that the petitioner has physical custody of the minor and:
      1. Is domiciled in the county in which the petition is being filed; or
      2. Is not a domiciliary of this state and the petition is being filed in the county where the minor is found;
    4. The name, address, and county of domicile of any living parent of the minor and a statement of whether one or both of the parents is the minor’s natural guardian;
    5. A statement of whether one or both of the parents have consented in a notarized writing to the appointment of the petitioner as temporary guardian and, if so, that the consents are attached to the petition;
    6. If the sole parent or both parents have not consented to the appointment of the temporary guardian, a statement of the circumstances that give rise to the need for the appointment of a temporary guardian; and
    7. The reason for any omission in the petition for temporary guardianship in the event full particulars are lacking.

History. — Code 1981, § 29-2-5 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 3/SB 534.

Law reviews. —

For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006).

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).

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. Atty Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

29-2-6. Parental consent to temporary guardianship; failure to consent; minor’s preference.

  1. Except as otherwise provided in subsection (f) of this Code section, if the sole parent or both parents of the minor have consented to the appointment of the temporary guardian, as evidenced by notarized written consents attached to the petition, the court shall grant the petition without further notice or hearing and shall issue letters of guardianship to the petitioner.
    1. If one or both of the parents of the minor have not consented to the appointment of the temporary guardian, notice of the petition shall be given to any parent who has not consented.
    2. The notice shall be by personal service if the parent resides in this state at a known address; by first-class mail if the parent resides outside this state at a known address; or by publication for two weeks in the official county legal organ for the county in which the petition is filed if no address is known.
    3. The notice shall state that the parent is entitled to object either to the establishment of a temporary guardianship or to the selection of the petitioner as temporary guardian, or both.
    4. The notice shall require that any objection be filed in writing with the court within ten days of the personal service, within 14 days of the mailing of the notice, or within ten days of the date of the second publication of the notice.
  2. Except as otherwise provided in subsection (f) of this Code section, if no parent who is entitled to notice under subsection (b) of this Code section files a timely objection to the petition, the court shall grant the petition without further notice or hearing and shall issue letters of guardianship to the petitioner.
  3. If a natural guardian of the minor files a timely objection to the establishment of the temporary guardianship, the court shall dismiss the petition. If a natural guardian files a timely objection to the selection of the petitioner as temporary guardian, the court shall hold a hearing to determine who shall serve as temporary guardian.
  4. If a parent who is not a natural guardian files a timely objection to the establishment of the temporary guardianship or to the selection of the petitioner as temporary guardian, the court shall hold a hearing to determine all matters at issue.
  5. In all hearings held pursuant to this Code section, the standard for determination for all matters at issue shall be the best interest of the minor. As to the selection of the temporary guardian, the preference of the minor may be heard. In all proceedings under this Code section, the court has the option to refer the petition to the juvenile court which shall, after notice and hearing, determine whether the temporary guardianship is in the best interest of the minor.

History. — Code 1981, § 29-2-6 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000).

For annual survey of wills, trusts, guardianships, and fiduciary administration, see 58 Mercer L. Rev. 423 (2006).

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).

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. Atty Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

29-2-7. Powers of temporary guardians; medical insurance coverage for minors.

  1. Except as otherwise provided by law, a temporary guardian shall be entitled to exercise any of the powers of a natural guardian. The court in its discretion may waive the requirement that a temporary guardian file the personal status reports that are required by paragraph (8) of subsection (b) of Code Section 29-2-21.
  2. If a temporary guardian, in writing, assumes the obligation to support the minor while the temporary guardianship is in effect, to the extent that no other sources of support are available, then for purposes of obtaining medical insurance coverage for the minor the temporary guardianship shall be deemed to be a permanent guardianship.

History. — Code 1981, § 29-2-7 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

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).

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. Atty Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

29-2-8. Termination of temporary guardianship; petition for termination of guardianship.

  1. A temporary guardianship shall terminate on the date upon which the earliest of the following occurs: the minor reaches age 18, the minor is adopted, the minor is emancipated, the minor dies, the temporary guardian dies, letters of guardianship are issued to a permanent or testamentary guardian, or a court order terminating the temporary guardianship is entered. Proof of adoption, death, or emancipation shall be filed with the court and the court may order a hearing in an appropriate case.
  2. Either natural guardian of the minor may at any time petition the court to terminate a temporary guardianship; provided, however, that notice of such petition shall be provided to the temporary guardian. If no objection to the termination is filed by the temporary guardian within ten days of the notice, the court shall order the termination of the temporary guardianship. If the temporary guardian objects to the termination of the temporary guardianship within ten days of the notice, the court shall have the option to hear the objection or transfer the records relating to the temporary guardianship to the juvenile court, which shall determine, after notice and hearing, whether a continuation or termination of the temporary guardianship is in the best interest of the minor.

History. — Code 1981, § 29-2-8 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey article discussing wills, trusts and administration of estates, see 52 Mercer L. Rev. 481 (2000).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

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).

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. Atty Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4.1).

PART 4 Standby Guardians

29-2-9. Definitions.

As used in this part, the term:

  1. “Designating individual” means a parent or guardian who appoints a standby guardian. A designating individual may only be:
    1. A parent of a minor, provided that he or she has physical custody of the minor and his or her parental rights have not terminated; and provided, further, that the other parent of the minor is deceased, has had his or her parental rights terminated, cannot be found after a diligent search has been made, or has consented to the designation of and service by the standby guardian; or
    2. A guardian of the minor who is duly appointed and serving pursuant to court order.
  2. “Health care professional” means a person licensed to practice medicine under Chapter 34 of Title 43 or a person licensed as a registered professional nurse under Chapter 26 of Title 43 and authorized by the Georgia Board of Nursing to practice as a nurse practitioner.
  3. “Health determination” means the dated, written determination by a health care professional that a designating individual is unable to care for a minor due to the designating individual’s physical or mental condition or health including a condition created by medical treatment.
  4. “Standby guardian” means an adult who is named by a designating individual to serve as standby guardian of the minor.

History. — Code 1981, § 29-2-9 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-10. Designation of standby guardian pending health issue; required probate court filing; no bond required; parental obligation to support continues.

  1. A designating individual may designate an individual to serve as standby guardian of a minor upon the health determination being made.
  2. Upon the health determination being made and without the necessity of any judicial intervention, the standby guardian shall assume all the rights, duties, and responsibilities of guardianship of the person of the minor. Consistent with the designating individual’s physical or mental condition or health, the designating individual may confer with the standby guardian in decision making concerning the care and welfare of the minor.
  3. Upon the health determination being made, the standby guardian shall file with the probate court of the county of domicile of the minor a notice of the standby guardianship with a copy of the standby guardianship designation and the health determination attached thereto.
  4. No bond shall be required of a standby guardian.
  5. No proceedings under this part shall relieve any parent, custodial or noncustodial, of a duty to support the minor under the provisions of Chapter 6 of Title 19.

History. — Code 1981, § 29-2-10 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-11. (See Editor’s notes.) Designation in writing; requirements of designation; form.

  1. A designation of a standby guardian shall be in writing and shall be signed by the designating individual or by some other individual in the designating individual’s presence and at the designating individual’s express direction. The designation shall be attested to and subscribed by two or more competent witnesses. Neither the witness nor an individual signing on behalf of the designating individual may be named the standby guardian.
  2. A standby guardian designation shall set forth the name, address, and county of domicile of the designating individual and of the standby guardian; the name, address, county of domicile, and date of birth of the minor; and the circumstances which define the parent or guardian as a designating individual. With regard to a parent of the minor who is not the designating individual, the designation shall state, to the extent known, that parent’s name and address and if that parent is deceased, has his or her parental rights terminated, and whether that parent cannot be located. The designation shall include a statement of consent, signed by the standby guardian, to serve in such capacity.
  3. A standby guardian designation shall be in substantially the following form and contain the following information:

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    A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

DESIGNATION OF STANDBY GUARDIAN (1) IDENTIFICATION OF DESIGNATING INDIVIDUAL: I, (insert name of person designating the standby guardian), whose address is (insert address) and whose county and state of domicile are (insert name of county and state), am: (Check and complete the ones which apply) (A) The parent with physical custody of the minor child or children listed below and my parental rights are not terminated; and the other parent, whose name is (insert name of other parent) and whose address is (insert address of other parent), of the minor child or children listed below: (A-1) Is deceased; (A-2) Has his or her parental rights to the minor or minors terminated; (A-3) Cannot be found after a diligent search has been made; or (A-4) Has consented to the designation of and service by the standby guardian as set forth below; or (B) The guardian of the minor child or children listed below, who is duly appointed and serving pursuant to court order. (2) IDENTIFICATION OF MINOR(S): The minor or minors for whom I am designating a standby guardian are: NAME ADDRESS (include county of DATE OF domicile) BIRTH (3) DESIGNATION AND IDENTIFICATION OF STANDBY GUARDIAN: Pursuant to Part 4 of Article 1 of Chapter 2 of Title 29 of the Official Code of Georgia Annotated, I hereby designate (insert name of standby guardian), whose address is (insert address) and whose county and state of domicile are (insert name of county and state), to serve as the standby guardian of the minor(s) whom I have identified above. (4) POWERS OF STANDBY GUARDIAN: The standby guardian whom I have designated above shall have all the rights, duties, and responsibilities under Georgia law of a guardian of a minor who has been appointed by a court. (5) DURATION OF STANDBY GUARDIANSHIP: I understand that upon a health care professional determining in writing that, due to my physical or mental health condition, I am not able to care for the minor(s) identified above, this standby guardianship shall become effective and the person whom I have designated above shall become the standby guardian of the person of the minor(s). I understand that I can revoke this standby guardianship by destroying this document, obliterating it, or by revoking it in writing with proper witnesses. I understand that if I wish to revoke the standby guardianship after the health determination has been made I must file a notice of the revocation of the standby guardianship with the probate court and mail a copy of the notice of revocation to the standby guardian. Finally, I understand that this standby guardianship will automatically end 120 days after the health care professional makes the determination that I am unable to care for the minor(s), unless the standby guardian has filed a petition for guardianship of the minor. If the standby guardian files such a petition, the standby guardianship will remain in effect, unless otherwise revoked, until the judge rules on the petition. In considering such a petition for guardianship, I understand that the judge will give preference for the appointment to the individual whom I name as the standby guardian in this document. (6) SIGNATURE: I certify that the statements contained herein are true and correct, this day of , . (Designating individual signs here) (Print name of designating individual) We, the undersigned witnesses, are at least 18 years of age, are not designated as the standby guardian, and state that the designating individual signed this designation in our presence. (Signature of first witness) (Print first witness’s address) (Signature of second witness) (Print second witness’s address) (7) CONSENT OF PARENT (To be completed only if line A-4 in paragraph (1) above has been checked): I, (insert name of parent other than the one designating the standby guardian), whose address is (insert address), am the parent of the above named minor(s). I understand that by this form, an individual is being designated to serve as a standby guardian of my child (or children). I understand that this standby guardian will have all the rights, duties, and responsibilities under Georgia law of a guardian of the person of a minor who has been appointed by a court. I further understand that I may object to this designation. Knowing this, I consent to the designation of (insert name of standby guardian). This day of , . (Other parent signs here) (Print name of other parent) We, the undersigned witnesses, are at least 18 years of age, are not designated as the standby guardian in this document, and state that the above-named parent signed this consent in our presence. (Signature of first witness) (Print first witness’s address) (Signature of second witness) (Print second witness’s address) (8) ACCEPTANCE OF DESIGNATION BY STANDBY GUARDIAN: I, (insert name of designated standby guardian), am the individual designated as the standby guardian in this document. I hereby accept this designation with full knowledge that upon a health care professional making a written determination that the parent of the minor(s) is not able to care for the minor(s) due to his or her physical or mental health or condition, I automatically take on this guardianship. Further, I understand that I must file a notice of my becoming a standby guardian, a copy of this designation, and a copy of the health determination with the probate court as soon as the health determination has been made. I understand that within 120 days of the health determination being made I must petition the probate court to name me as guardian of the minor(s). This day of , . (Standby guardian signs here) (Print name of standby guardian) We, the undersigned witnesses, are at least 18 years of age, are not designated as the standby guardian in this document, and state that the standby guardian signed this document in our presence. (Signature of first witness) (Print first witness’s address) (Signature of second witness) (Print second witness’s address)

History. — Code 1981, § 29-2-11 , enacted by Ga. L. 2004, p. 161, § 1.

Editor’s notes. — For application of this statute in 2020, see Executive Order 04.09.20.01.

History. — Code 1981, § 29-2-11 , enacted by Ga. L. 2004, p. 161, § 1.

Editor’s notes. —

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

29-2-12. Revocation of standby guardianship prior to and subsequent to health determination.

  1. At any time before the health determination is made, a standby guardianship may be revoked without notice to anyone by destruction or obliteration of the designation done by the designating individual with an intent to revoke or by a written revocation signed by the designating individual or by some other individual in the designating person’s presence and at the designating individual’s express direction and attested to and subscribed by two or more competent witnesses.
  2. After the health determination has been made, the standby guardianship may be revoked by the designating individual by filing a notice of such revocation with the court in which the standby guardianship was filed as required by Code Section 29-2-10 and by mailing a copy of the notice of revocation by first-class mail to the standby guardian.

History. — Code 1981, § 29-2-12 , enacted by Ga. L. 2004, p. 161, § 1.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2004, in subsection (b), “made, the” was substituted for “made the” near the beginning and “filed as required” was substituted for “filed the notice as required” near the middle.

29-2-13. Petition seeking temporary guardianship; automatic termination of standby guardianship.

  1. Within 120 days of the health determination being made, the standby guardian shall file with the probate court in the county of domicile of the minor a petition seeking temporary guardianship of the minor.
  2. Except as otherwise provided, a standby guardianship shall automatically terminate 120 days after the making of the health determination unless the standby guardian has filed a petition for temporary guardianship of the minor, in which case the standby guardianship shall remain in effect, unless otherwise revoked, until the petition is ruled upon.
  3. If the designating individual dies prior to the entering of an order on a petition for guardianship of the minor, as contemplated by subsection (a) of this Code section, the standby guardianship shall be terminated. If the designating individual dies subsequent to the entering of an order on such a petition, the guardianship created pursuant to that order shall terminate in favor of any testamentary designation of a guardian of the minor or, if there is no testamentary designation, to an order on a petition for guardianship brought thereafter and subject to Code Section 29-2-17.

History. — Code 1981, § 29-2-13 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

Am. Jur. Pleading and Practice Forms. —

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

PART 5 Permanent Guardianship

29-2-14. Power of probate court to appoint guardian.

The probate court of the county in which a minor is found or in which the proposed permanent guardian is domiciled shall have the power to appoint a permanent guardian for a minor who has no natural guardian, testamentary guardian, or permanent guardian. In its discretion, the probate court of the county in which the petition for appointment of a permanent guardian is filed may transfer the case to the probate court of any other county in this state if such transfer would serve the best interest of the minor.

History. — Code 1981, § 29-2-14 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Jurisdiction of courts to appoint guardian of child, § 15-11-6 .

Appointment of guardian ad litem in probate proceedings, § 53-3-19 (Pre-1998 Probate Code).

Provision that surviving spouse under 18 years may take share of estate without intervention of guardian, § 53-4-2(3) (Pre-1998 Probate Code).

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

For article, “Trusts for Dependents: Effect of Georgia’s Support Obligation on Federal Income Taxation,” see 8 Ga. St. B.J. 323 (1972).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338, former Code 1868, § 1797, former Code 1882, § 1806, former Civil Code 1895, § 2516, former Code 1933, § 49-105, and former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.

Probate judge has appointment power for benefit of child. —

Power of appointment is vested in ordinary (now judge of probate court), for benefit of child, not of applicant. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Guardian of the property. —

Former O.C.G.A. § 29-4-4 authorized a probate court to appoint a guardian of the property, over the natural guardian’s objection, of a minor over the age of 14, whose sole property was a personal injury action. In re Ray, 248 Ga. App. 45 , 545 S.E.2d 617 (2001) (decided under former O.C.G.A. § 29-4-4).

Discussion of former Civil Code 1895, § 2516 (former O.C.G.A. § 29-4-4) application when child had natural guardian. —

See Jordan v. Smith, 5 Ga. App. 559 , 63 S.E. 595 (1909) (decided under former Civil Code 1895, § 2516).

Generally cannot appoint guardian of person when parent is living. —

The ordinary (now judge of probate court) had no power under former Civil Code 1895, § 2516 (former O.C.G.A. § 29-4-4) to appoint guardian of person of child whose father was living, unless parental rights of latter have been forfeited and the forfeiture had been ascertained and declared in some regular proceeding authorized by law, after due notice to him. Jordan v. Smith, 5 Ga. App. 559 , 63 S.E. 595 (1909) (decided under former Civil Code 1895, § 2516).

Acting guardian estopped from arguing lack of venue regarding appointment. —

One appointed and acting as guardian estopped from claiming court of wrong county made appointment. Hines v. Mullins ex rel. Smith, 25 Ga. 696 (1858) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Effect of guardian’s death upon guardianship. —

Relation of guardian and ward is necessarily terminated by death of either, and if terminated by death of guardian, it is the duty of guardian’s personal representative to render an account and turn over property in the guardian’s hands to proper person, and the guardianship continues, in a sense, to exist for that purpose only. Harrison v. Tonge, 67 Ga. App. 54 , 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).

Ward’s Right to Select

At age of 14 ward may choose new guardian. —

Pursuant to former Code 1868, § 1797 (former O.C.G.A. § 29-4-4), a ward, after attaining an age of 14 years, has right to choose a guardian, and for that purpose to have letters of guardianship issued under appointment of ordinary (now judge of probate court) to former guardian, revoked. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1868, § 1797).

Proceeding for ward to select new guardian. —

The first step which ward must take to remove guardian appointed by the ordinary (now judge of probate court), and substitute therefor one of the ward’s own selection, after the ward has arrived at age to make such selection, is to institute a proceeding to revoke letters of guardian. The ward can only do this by petition filed in court of ordinary (now probate court) of county of guardian’s appointment. Dickerson v. Bowen, 128 Ga. 122 , 57 S.E. 326 (1907) (decided under former Civil Code 1895, § 2516).

Ward may appeal when denied right to select guardian. —

If legal right of ward is adversely affected by order of ordinary (now judge of probate court) appointing new guardian not selected by ward, the ward has right of appeal to superior court. Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-105).

On appeal the whole case is tried anew, and discretion of ordinary (now judge of probate court) vests in superior court for that trial. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Jurisdiction

Guardianship letters granted only at regular term of court were without jurisdiction. Where proceedings show on their face that letters were granted by ordinary (now probate judge) at chambers, the appointment was made without jurisdiction, and is void. Bell v. Love, 72 Ga. 125 (1883) (decided under former Code 1882, § 1806).

Infant’s residence at time guardian appointed determines jurisdiction. —

Infant’s place of residence at time guardian is to be appointed determines jurisdiction; hence the ordinary (now judge of probate court) who appointed the first guardian of a ward may not always appoint the guardian’s successor. Harrison v. Tonge, 67 Ga. App. 54 , 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).

No jurisdiction to appoint guardian for infant residing outside county. —

Ordinary (now judge of probate court) has no jurisdiction to appoint guardian for infant whose residence is out of the county. Rives v. Sneed, 25 Ga. 612 (1858) (decided under Ga. L. 1850, Cobb’s 1851 Digest, p. 338).

Judge of residence approves guardian selection. —

It is for probate judge of ward’s county of residence to approve or disapprove selection. Dickerson v. Bowen, 128 Ga. 122 , 57 S.E. 326 (1907) (decided under former Civil Code 1895, § 2516).

Letters of guardian must be revoked to appoint new guardian. —

After jurisdiction to appoint guardian has been exercised, a new guardian cannot be appointed until letters of former guardian have been revoked. Harrison v. Tonge, 67 Ga. App. 54 , 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).

Jurisdiction over removal and new appointments where guardian and ward leave county without removing trust, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-105).

Cannot collaterally attack right of guardianship. —

Judgments rendered under court’s jurisdiction over controversies concerning right of guardianship cannot be collaterally attacked. Beavers v. Williams, 194 Ga. 875 , 23 S.E.2d 171 (1942) (decided under former Code 1933, § 49-105).

Cannot collaterally attack appointment unless want of jurisdiction. —

Judgment of court of ordinary (now probate court) appointing guardian cannot be collaterally attacked, unless want of jurisdiction appears on face of record. Sturtevant v. Robinson, 133 Ga. 564 , 66 S.E. 890 (1909) (decided under former Civil Code 1895, § 2516).

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. Atty 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.

29-2-15. “Biological father” defined; notice of petition for appointment of permanent guardian; protest of father; petition to legitimate.

  1. For purposes of this part, the term “biological father” means a father of a minor born out of wedlock whose rights regarding the minor have not been surrendered or terminated but who is not entitled to have custody of and exercise parental power over the child pursuant to Code Section 19-7-25.
    1. Notice of a petition for appointment of a permanent guardian of a minor shall be given to the minor’s biological father, if any, in the following circumstances:
      1. If the identity of the biological father is known to the petitioner;
      2. If the biological father is a registrant on the putative father registry who has acknowledged paternity of the minor in accordance with subparagraph (d)(2)(A) of Code Section 19-11-9;
      3. If the biological father is a registrant on the putative father registry who has indicated possible paternity of a child of the minor’s mother during a period beginning two years immediately prior to the minor’s date of birth in accordance with subparagraph (d)(2)(B) of Code Section 19-11-9; or
      4. If the biological father has lived with the minor; contributed to the minor’s support; made any attempt to legitimate the minor; or provided support or medical care for the mother either during her pregnancy or during her hospitalization for the birth of the minor.
    2. The notice shall advise the biological father that he will lose all rights to object to the appointment of a permanent guardian for the minor if he does not file an objection with the court within 14 days of the notice and file a petition to legitimate the minor within 30 days of the hearing on his objection. The notice shall include the name of the individual who will be the minor’s permanent guardian if the petition is granted.
  2. If the biological father files a timely objection to the petition, the court shall hear the objection and, if the biological father makes a request, shall continue the hearing for 30 days to allow the father to file a petition to legitimate the minor pursuant to Code Section 19-7-22. If the biological father’s petition for legitimation of the minor is granted, the petition for the appointment of a permanent guardian for the minor shall be dismissed.
  3. If the biological father does not file a petition for legitimation within 30 days or files a petition that is subsequently dismissed for failure to prosecute or files a petition and the action is subsequently concluded without a court order declaring that he is the father of the minor, the biological father shall have no further rights to receive notice of or object to the appointment of a permanent guardian for the minor.

History. — Code 1981, § 29-2-15 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey of wills, trusts, guardianships, and fiduciary administration, see 57 Mercer L. Rev. 403 (2005).

29-2-16. Individuals with preference for permanent guardianship of minor; preference not controlling.

  1. The court shall appoint as permanent guardian that individual who will serve the best interest of the minor, considering the following order of preferences:
    1. The adult who is the preference of the minor if the minor is 14 years of age or older;
    2. The nearest adult relative of the minor determined according to Code Section 53-2-1;
    3. Other adult relatives of the minor;
    4. Other adults who are related to the minor by marriage;
    5. An adult who was designated in writing by either of the minor’s natural guardians in a notarized document or document witnessed by two or more persons; or
    6. An adult who has provided care or support for the minor or with whom the minor has lived.
  2. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference. In determining what is in the best interest of the minor, the court may take into account any facts and circumstances presented to it, including the statement of a minor who is under 14 years of age.

History. — Code 1981, § 29-2-16 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.

Cross references. —

Grandparent defined, § 19-7-3 .

County administrators as ex officio county guardians, § 29-3-1 .

Law reviews. —

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

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) See also Johnson v. Kelly, 44 Ga. 485 (1871); Chalker v. Thornton, 31 Ga. App. 791 , 122 S.E. 244 (1924) (decided under former Civil Code 1895, § 2518).

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 (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), cert. denied, No. S06C1724, 2006 Ga. LEXIS 699 (Ga. Sept. 8, 2006).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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.

29-2-17. Petition for appointment of permanent guardian; requirements of petition; notice.

  1. Any interested person may file a petition for the appointment of a permanent guardian of a minor.
  2. The petition for appointment of a permanent guardian shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and date of birth of the minor;
    3. The name, address, and county of domicile of the petitioner and the petitioner’s relationship to the minor, if any, and, if different from the petitioner, the name, address, and county of domicile of the individual nominated by the petitioner to serve as guardian and that individual’s relationship to the minor, if any;
    4. A statement that the minor has no natural guardian, testamentary guardian, or permanent guardian;
    5. A statement of whether the child was born out of wedlock and, if so, the name and address of the biological father, if known;
    6. Whether, to the petitioner’s knowledge, there exists any notarized or witnessed document made by a parent of the minor that deals with the guardianship of the minor and the name and address of any designee named in the document;
    7. In addition to the petitioner and the nominated guardian, the names and addresses of the following relatives of the minor whose whereabouts are known:
      1. The adult siblings of the minor; provided, however, that not more than three adult siblings need to be listed;
      2. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need to be listed; or
      3. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1;
    8. Whether a temporary guardian has been appointed for the minor or a petition for the appointment of a temporary guardian has been filed or is being filed; and
    9. The reason for any omission in the petition for appointment of a permanent guardian for a minor in the event full particulars are lacking.
  3. In addition to the notice required by Code Section 29-2-15, notice of the petition for appointment of a permanent guardian for a minor shall be given to any designee named in paragraph (6) of subsection (b) of this Code section and the individuals named in paragraph (7) of subsection (b) of this Code section. The notice shall be by personal service if the individual resides in this state at a known address; by first-class mail if the individual resides outside this state at a known address; or by publication for two weeks in the official county legal organ for the county in which the petition is filed if no address is known. The notice shall state that the individual is entitled to object either to the establishment of a permanent guardianship or to the selection of the petitioner as permanent guardian, or both. The notice shall require that any objection be filed in writing with the court within ten days of the personal service, within 14 days of the mailing of the notice, or within ten days of the date of the second publication of the notice.
  4. If the judge deems it necessary, a temporary guardian may be appointed under the same rules that apply to the appointment of a temporary administrator.

History. — Code 1981, § 29-2-17 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142.

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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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).

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.

29-2-18. Hearing; best interest of the child standard.

Upon the filing of a petition for the appointment of a permanent guardian of a minor and the giving of notice, the court shall hold a hearing and the standard for determination for all matters at issue shall be the best interest of the minor.

History. — Code 1981, § 29-2-18 , enacted by Ga. L. 2004, p. 161, § 1.

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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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 (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), cert. denied, No. S97C1065, 1997 Ga. LEXIS 670 (Ga. June 27, 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), cert. denied, No. S95C1849, 1995 Ga. LEXIS 1211 (Ga. Nov. 3, 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 (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) (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) (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 (1965) (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 (Ga. Ct. App. 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), cert. denied, No. S96C0020, 1995 Ga. LEXIS 1226 (Ga. Dec. 1, 1995) (decided under former O.C.G.A. § 29-5-6).

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. Atty 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. Atty 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. Atty 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.

Am. Jur. Pleading and Practice Forms. —

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.

29-2-19. Requirements of order granting permanent guardianship.

An order granting permanent guardianship shall specify:

  1. The name of the permanent guardian and the basis for the selection of the guardian;
  2. A specific listing of any of the additional powers which are granted to the permanent guardian as provided in subsection (b) of Code Section 29-2-22;
  3. If only a guardian is appointed or if the guardian and the conservator appointed are not the same person, the reasonable sums of property to be provided the guardian to provide adequately for the minor’s support, care, education, health, and welfare are subject to modification by subsequent order of the court; and
  4. Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the minor.

History. — Code 1981, § 29-2-19 , enacted by Ga. L. 2004, p. 161, § 1.

Article 2 Protection of Minor

29-2-20. Rights of minor; impact on testamentary capacity.

  1. In every guardianship, the minor has the right to:
    1. A qualified guardian who acts in the best interest of the minor;
    2. A guardian who is reasonably accessible to the minor;
    3. Have his or her property utilized as necessary for his or her support, care, education, health, and welfare; and
    4. Individually or through the minor’s representative or legal counsel, bring an action relating to the guardianship.
  2. The appointment of a guardian is not a determination that a minor who is 14 years of age or older lacks testamentary capacity.

History. — Code 1981, § 29-2-20 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Direction of notice where owner a minor under disability, appointment of guardian ad litem, § 22-2-21 .

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).

RESEARCH REFERENCES

C.J.S. —

39 C.J.S., Guardian and Ward, § 139.

29-2-21. Power of guardian over minor; obligations of guardians; liability of guardian.

  1. The power of a guardian over the minor shall be the same as that of a parent over a child; the guardian standing in place of the parent. A guardian shall at all times act as a fiduciary in the minor’s best interest and exercise reasonable care, diligence, and prudence.
  2. A guardian shall:
    1. Respect the rights and dignity of the minor;
    2. Arrange for the support, care, education, health, and welfare of the minor considering the minor’s available resources;
    3. Take reasonable care of the minor’s personal effects;
    4. Expend money of the minor that has been received by the guardian for the minor’s current needs for support, care, education, health, and welfare;
    5. Conserve for the minor’s future needs any excess money of the minor received by the guardian; provided, however, that if a conservator has been appointed for the minor, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the minor’s future needs;
    6. If necessary, petition to have a conservator appointed;
    7. Endeavor to cooperate with the conservator, if any;
    8. Within 60 days after appointment and within 60 days after each anniversary date of appointment, file with the court and provide to the conservator, if any, a personal status report concerning the minor, which shall include:
      1. A description of the minor’s general condition, changes since the last report, and the minor’s needs;
      2. All addresses of the minor during the reporting period and the living arrangements of the minor for all addresses; and
      3. Recommendations for any alteration in the guardianship order;
    9. Promptly notify the court of any conflict of interest between the minor and the guardian when the conflict arises or becomes known to the guardian and take such action as is required by Code Section 29-2-23;
    10. Keep the court informed of the guardian’s current address; and
    11. Act promptly to terminate the guardianship when the minor dies, reaches age 18, is adopted, or is emancipated.
  3. A guardian, solely by reason of the guardian-minor relationship, is not personally liable for:
    1. The minor’s expenses;
    2. Contracts entered into in the guardian’s fiduciary capacity;
    3. The acts or omissions of the minor;
    4. Obligations arising from ownership or control of property of the minor; or
    5. Other acts or omissions occurring in the course of the guardianship.

History. — Code 1981, § 29-2-21 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Rights and duties of permanent guardians of juveniles, § 15-11-242 .

Parent and child relationship generally, § 19-7-1 et seq.

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 (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).

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.

29-2-22. Authority of guardian; appointment of guardian ad litem.

  1. The appointment of a guardian shall vest in the guardian the exclusive power, without court order, to:
    1. Take custody of the person of the minor and establish the minor’s place of dwelling within this state;
    2. Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent law, give any consent or approval that may be necessary for medical or other professional care, counsel, treatment, or services for the minor;
    3. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the minor in the name of or on behalf of the minor;
    4. Execute a surrender of rights to enable the adoption of the minor pursuant to the provisions of Article 1 of Chapter 8 of Title 19 or the adoption laws of any other state; and
    5. Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health, and welfare of the minor.
  2. At the time of the appointment of the guardian or at any time thereafter, any of the following powers may be specifically granted by the court to the guardian upon such notice, if any, as the court shall determine, provided that no disposition of the minor’s property shall be made without the involvement of a conservator, if any:
    1. To establish the minor’s place of dwelling outside this state;
    2. To change the jurisdiction of the guardianship to another county in this state that is the county of the minor’s place of dwelling, pursuant to Code Section 29-2-60;
    3. To change the domicile of the minor to the minor’s or the guardian’s place of dwelling, in the determination of which the court shall consider the tax ramifications and the succession and inheritance rights of the minor and other parties;
    4. To consent to the marriage of the minor;
    5. To receive reasonable compensation from the estate of the minor for services rendered to the minor; and
    6. If there is no conservator, to disclaim or renounce any property or interest in property of the minor in accordance with the provisions of Code Section 53-1-20.
  3. Before granting any of the powers described in subsection (b) of this Code section, the court shall appoint a guardian ad litem for the minor and shall give notice to any natural guardian of the minor.
  4. In granting any of the powers described in subsection (b) of this Code section, the court shall consider the property rights of the minor and the views of the conservator, if available, or, if there is no conservator, of others who have custody of the minor’s property.
  5. In performing any of the acts described in this Code section, the guardian shall act in coordination and cooperation with the conservator or, if there is no conservator, with others who have custody of the minor’s property.

History. — Code 1981, § 29-2-22 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2009, p. 800, § 5/HB 388; Ga. L. 2011, p. 752, § 29/HB 142.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Appointment of guardian ad litem, § 15-11-9 .

Rights and duties of permanent guardians of juveniles, § 15-11-242 .

Powers of sale when exercisable by successor administrator, trustee, or guardian, § 23-2-116 .

Editor’s notes. —

Ga. L. 2009, p. 800, § 1, not codified by the General Assembly, provides that: “This Act shall be known and may be cited as the ‘Option of Adoption Act.’ ”

Law reviews. —

For article, “The Child as a Party in Interest in Custody Proceedings,” see 10 Ga. St. B.J. 577 (1974).

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), cert. denied, No. S10C2049, 2011 Ga. LEXIS 138 (Ga. Feb. 7, 2011).

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, No., 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.

29-2-23. Conflicts of interest.

The guardian must disclose promptly any conflict of interest between the guardian and the minor when it arises or becomes known to the guardian and seek the court’s determination as to whether the conflict is insubstantial or if it is in the best interest of the minor for the guardian to continue to serve.

History. — Code 1981, § 29-2-23 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Rights and duties of permanent guardians of juveniles, § 15-11-242 .

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.

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.

29-2-24. Oath required of guardian.

Before entering upon the duties of the appointment, every guardian appointed pursuant to the terms of this chapter shall take an oath or affirmation before the court to perform well and truly the duties required of a guardian and to account faithfully for the estate. The oath or affirmation of a guardian may be subscribed before the judge or clerk of any probate court of this state. The judge of the probate court who appoints the guardian shall have the authority to grant a commission to a judge or clerk of any court of record of any other state to administer the oath or affirmation.

History. — Code 1981, § 29-2-24 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Rights and duties of permanent guardians of juveniles, § 15-11-242 .

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).

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 .

29-2-25. Bond requirements.

  1. A guardian may be required to give bond with good and sufficient security in such amount as the court may determine from time to time.
  2. The clerk of the court shall record bonds in books kept for that purpose and shall retain custody of the bonds.
  3. If a guardian is required to give bond and has given as security one or more licensed commercial sureties authorized to transact business in this state, the bond premium shall, upon the request of the guardian, be paid from the estate of the minor.

History. — Code 1981, § 29-2-25 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2019, p. 693, § 1/HB 70.

The 2019 amendment, effective January 1, 2020, substituted “shall, upon the request of the guardian, be paid from the estate of the minor” for “may be paid as part of the cost of administration” in subsection (c).

Cross references. —

Time limitation on bringing of actions against guardians, § 9-3-27 .

Statute of limitations for prosecution for conversion by guardian of property of ward, § 17-3-2 .

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).

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.

Article 3 Termination of Guardianship

29-2-30. Circumstances when guardianship terminates; delivery of property.

  1. The guardianship of a minor shall terminate on the date upon which the earliest of the following occurs: the minor reaches age 18, the minor is adopted, the minor is emancipated, the minor dies, or a court order terminating the guardianship is entered. Proof of adoption, death, or emancipation shall be filed with the court and the court in its discretion may order a hearing.
  2. Within six months prior to the date the minor reaches 18 years of age, the guardian or any other interested person may file a petition for the appointment of a guardian for the minor when that minor becomes an adult, in accordance with the provisions of Article 2 of Chapter 4 of this title, to take effect on or after the date the minor reaches 18 years of age.
  3. The death of the minor automatically terminates the guardianship, except as otherwise provided in Code Section 29-2-31.
  4. Upon termination of the guardianship, the guardian shall deliver any money or property to the former minor or, if a guardian or conservator has been appointed for the former minor, to that guardian or conservator or, if the minor is deceased, to the minor’s personal representative.

History. — Code 1981, § 29-2-30 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 4/SB 534.

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), cert. denied, No. S10C2049, 2011 Ga. LEXIS 138 (Ga. Feb. 7, 2011).

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.

29-2-31. Petition for order dismissing guardian.

  1. Upon the termination of the guardianship or the resignation of the guardian, the guardian may petition the court for an order dismissing the guardian from office. The petition shall include a final status report to the court which covers the period of time from the latest annual status report filed by the guardian. The final status report shall contain the information required for annual status reports and shall otherwise comply with the provisions of paragraph (8) of subsection (b) of Code Section 29-2-21. Notice shall be published one time in the newspaper in which sheriff’s advertisements are published in the county in which the petition is filed and shall state that any objection must be made in writing and shall designate the date on or before which objections must be filed in the court, which shall not be less than 30 days from the date of publication. The court shall examine any objections filed.
  2. If no objection is filed or if, upon hearing any objection, the court is satisfied that the order dismissing the guardian from office is appropriate, the court shall enter an order dismissing the guardian from office. Such order shall not bar an action against the guardian.

History. — Code 1981, § 29-2-31 , enacted by Ga. L. 2004, p. 161, § 1.

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) (decided under former Code 1882, § 1849); Poullain v. Poullain, 76 Ga. 420 , 4 S.E. 92 (1886) (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), cert. denied, No. S97C1971, 1998 Ga. LEXIS 126 (Ga. Jan. 5, 1998) (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).

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.

Article 4 Violations by Guardians

29-2-40. Petition to resign guardianship; requirements; service; hearing; appointment of successor guardian.

  1. A guardian or the duly authorized guardian, conservator, or attorney in fact of a guardian, acting on behalf of the guardian, may resign upon petition to the court, showing to the satisfaction of the court that:
    1. The guardian is unable to continue to serve due to age, illness, infirmity, or other good cause;
    2. Greater burdens have devolved upon the office of guardian than those that were originally contemplated or should have been contemplated when the guardian was qualified and the additional burdens work a hardship upon the guardian;
    3. Disagreement exists between the minor and the guardian or between the guardian and the conservator in respect of the guardian’s care of the minor, which disagreement and conflict appear to be detrimental to the minor;
    4. The resignation of the guardian will result in or permit substantial financial benefit to the minor; or
    5. The resignation would not be disadvantageous to the minor.
  2. The petition for resignation shall include the name of a suitable person who is willing to accept the guardianship.
  3. Personal service of the petition for resignation shall be made upon the minor and a guardian ad litem appointed by the court for the minor. Service shall be made by first-class mail to the parents of the minor in the event of the resignation of a temporary guardian, to the conservator of the minor, if any, and, in the following order of preference, to the following relatives of the minor whose whereabouts are known and who must be persons other than the resigning guardian or the proposed successor guardian:
    1. The adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    2. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    3. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  4. If after such hearing as the court deems appropriate, the court is satisfied that the petition for the resignation of the guardian and the appointment of the successor guardian should be granted, the court shall enter an order appointing the successor guardian in accordance with the provisions of Code Section 29-2-51 and accept the resignation, subject to the resigning guardian turning over to the successor guardian or conservator all property of the minor held by the guardian.

History. — Code 1981, § 29-2-40 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142.

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.

29-2-41. Appointment of successor guardian.

  1. In the event of the death of a guardian, and upon the petition of an interested person or upon the court’s own motion, the court shall appoint a successor guardian. The court shall notify the minor and any guardian ad litem appointed for the minor by personal service. Notice shall be given by first-class mail to the conservator of the minor, if any, to the personal representative of the deceased guardian, if any, and, in the following order of preference, to the following relatives of the minor whose whereabouts are known and who must be persons other than the proposed successor guardian:
    1. The adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    2. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    3. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  2. After such hearing as the court deems appropriate, the court shall enter an order appointing a successor guardian in accordance with the provisions of Code Section 29-2-51 requiring the personal representative of the deceased guardian to turn over to the successor guardian all property of the minor held by the guardian.

History. — Code 1981, § 29-2-41 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.

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 .

29-2-42. Requirement of guardian to answer charges affecting obligations as guardian; revocation of guardianship; impact on other proceedings.

  1. Upon the petition of any interested person or whenever it appears to the court that good cause may exist to revoke or suspend the letters of guardianship or to impose sanctions, the court shall cite the guardian to answer the charge. The court shall investigate the allegations and may require such accounting as the court deems appropriate. The court may appoint a temporary substitute guardian for the minor during the investigation.
  2. Upon investigation the court may in its discretion:
    1. Revoke or suspend the letters of guardianship;
    2. Require additional security;
    3. Reduce or deny compensation to the guardian or impose such other sanction or sanctions as the court deems appropriate; and
    4. Issue any other order as in the court’s judgment is appropriate under the circumstances of the case.
  3. The revocation or suspension of letters of guardianship shall not abate any action pending for or against the guardian. The successor guardian shall be made a party to the action in the manner provided in Code Section 9-11-25.

History. — Code 1981, § 29-2-42 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

Law reviews. —

For article on the problems and benefits of multiple fiduciaries in estate planning, see 33 Mercer L. Rev. 355 (1981).

For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

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), cert. denied, No. S10C2049, 2011 Ga. LEXIS 138 (Ga. Feb. 7, 2011).

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).

29-2-43. Minor’s cause of action for breach of guardian’s fiduciary duties.

  1. If a guardian commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a minor or an interested person on behalf of the minor shall have a cause of action as appropriate:
    1. To recover damages;
    2. To compel performance of the guardian’s duties;
    3. To enjoin the commission of a breach of fiduciary duty; or
    4. To compel the redress of a breach of fiduciary duty by payment of money or otherwise.
  2. When the minor’s assets are misapplied and can be traced into the hands of persons who have notice of the misapplication, a trust shall attach to the assets.
  3. The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.

History. — Code 1981, § 29-2-43 , enacted by Ga. L. 2004, p. 161, § 1.

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).

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 Ga. Op. Att'y Gen. 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 .

29-2-44. Statute of limitations.

All actions against a guardian, except on the guardian’s bond, shall be brought within six years of the termination of the guardianship of the minor, except as provided in Code Section 9-3-90.

History. — Code 1981, § 29-2-44 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For article, “Some Problems in Providing for Nonjudicial Settlement of the Trustee’s Accounts,” see 3 Ga. St. B.J. 417 (1967).

For article, “Fiduciary Problems of the Executor and Trustee: Conflicts of Interest, Violations of Fiduciary Duties, Surcharge, and Other Remedies of Beneficiaries,” see 9 Ga. St. B.J. 187 (1972).

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).

OPINIONS OF THE ATTORNEY GENERAL

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. Atty 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.

Article 5 Temporary Substitute Guardians

29-2-50. Appointment of temporary substitute guardian; length of service; powers; notice of appointment; application of chapter.

  1. Upon its own motion or on the petition of any interested party, including the minor, the court may appoint a temporary substitute guardian for a minor if it appears to the court that the best interest of the minor requires immediate action.
  2. The temporary substitute guardian shall be appointed for a specified period not to exceed 120 days.
  3. The court shall appoint as temporary substitute guardian an appropriate individual who shall serve the best interest of the minor.
  4. Except as otherwise ordered by the court, a temporary substitute guardian has the powers set forth in the order of appointment. The authority of the previously appointed guardian is suspended for as long as the temporary substitute guardian has authority to act on behalf of the minor.
  5. Notice of the appointment of a temporary substitute guardian shall be served personally on the minor. Notice of the appointment shall be served personally on the previously appointed guardian at the last address provided by that guardian to the court. Notice of the appointment shall be mailed by first-class mail to the minor’s conservator, if any.
  6. The court may remove the temporary substitute guardian at any time. A temporary substitute guardian shall make any report the court requires. In all other respects, the provisions of this chapter apply to the temporary substitute guardian.

History. — Code 1981, § 29-2-50 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-51. Appointment of successor guardian; notice; preference to selected individuals; order of appointment.

  1. The court shall appoint a successor guardian upon the resignation, death, or revocation of the letters of the guardian if the appointment of a successor guardian is in the best interest of the minor. The court shall select the successor guardian in the manner provided in Code Section 29-2-16.
  2. In the event of the resignation or death of the guardian, notice of the proceeding for appointment of a successor guardian shall be given as provided in Code Sections 29-2-40 and 29-2-41. In all other cases, notice of the proceeding for appointment of a successor guardian shall be served personally on the minor and a guardian ad litem appointed for the minor. Notice shall be given by first-class mail to the conservator of the minor, if any, and, in the following order of preference, to the following relatives of the minor whose whereabouts are known and who must be persons other than the proposed successor guardian:
    1. The adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    2. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    3. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  3. After such hearing as the court deems appropriate, the court shall enter an order appointing the successor guardian.

History. — Code 1981, § 29-2-51 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142; Ga. L. 2019, p. 693, § 2/HB 70.

The 2019 amendment, effective January 1, 2020, substituted “29-2-16” for “29-2-15” at the end of the second sentence of subsection (a).

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.

29-2-52. Delivery of property to successor guardian; reporting requirements.

Upon the appointment of a successor guardian, the predecessor guardian or the personal representative of a deceased predecessor guardian shall deliver to the successor guardian all property of the minor held by the guardian and shall submit a final status report covering the period since the guardian’s last status report.

History. — Code 1981, § 29-2-52 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

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.

Article 6 Jurisdiction

Cross references. —

Appointment of guardian, § 15-11-30.1.

RESEARCH REFERENCES

Am. Jur. Trials. —

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

C.J.S. —

39 C.J.S., Guardian and Ward, §§ 17 et seq., 261 et seq.

PART 1 General Provisions

29-2-60. Petition for jurisdiction change; retention of jurisdiction for limited matters.

  1. A guardian may petition to remove the guardianship to the jurisdiction of the court of the county in this state in which the minor resides.
  2. Upon the filing of a petition to remove the guardianship to another county in this state, the court shall appoint a guardian ad litem for the minor. The court of the county in which the guardian was appointed shall grant the petition for removal only if the court determines that the removal is in the best interest of the minor.
  3. Before the removal of the guardianship to another county in this state, the guardian shall file with the court of the county to which the guardianship is to be removed certified copies of all the records pertaining to the guardianship.
  4. Following removal of a guardianship to another county in this state, the court of that county shall have the same jurisdiction over the guardian as if the guardian had been first appointed in that county, and every case growing out of or affecting the guardianship shall be heard and tried only in the county to which the guardianship has been removed.
  5. The court in which an action or proceeding is pending or which has issued an order for a settlement of accounts, removal, or sanction of a guardian shall retain jurisdiction of such matters even when the guardianship has been removed to another county.

History. — Code 1981, § 29-2-60 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

ALR. —

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

PART 2 Guardianship Appointed

29-2-65. “Guardianship” defined; requirements of petition for transfer.

  1. For purposes of this part and Part 3 of this article, the term “guardianship” refers to a legal relationship in which a person is given responsibility by a foreign court for the care of a minor, thereby becoming a guardian.
  2. A guardian who has been appointed by a foreign court of competent jurisdiction may petition to have the guardianship transferred to and accepted in this state by filing a petition for receipt and acceptance of the foreign guardianship in the court of the county in this state where the minor resides or may reside.
  3. The petition shall include the following:
    1. An authenticated copy of the foreign guardianship order including:
      1. All attachments describing the duties and powers of the guardian; and
      2. All amendments or modifications to the foreign guardianship order entered subsequent to the original order, including any order to transfer the guardianship;
    2. The address of the foreign court which issued the guardianship order;
    3. A listing of any other guardianship petitions that are pending in any jurisdiction and the names and addresses of the courts where the petitions have been filed;
    4. The petitioner’s name, address, and county of domicile;
    5. The name, age, and current address of the minor and the new or proposed address of the minor;
    6. The names and current addresses of the adult siblings of the minor, if any;
    7. The name and address of the person responsible for the care and custody of the minor, if other than the petitioner, and of any other person currently serving as guardian;
    8. The name and address of any person currently acting as legal representative, other than the petitioner, including any legal counsel, guardian ad litem, or court visitor appointed by the foreign court for the minor;
    9. The name and address of the minor’s conservator, if any; and
    10. The reason the transfer is in the minor’s best interest.
  4. The petition may be combined with other petitions related to the guardianship, including a petition to modify the terms of the guardianship.

History. — Code 1981, § 29-2-65 , enacted by Ga. L. 2004, p. 161, § 1.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2004, the second subsection (c), as enacted by Ga. L. 2004, p. 161, was redesignated as subsection (d).

29-2-66. Notice to minor and foreign court; requirements of notice; notice to others; waiver of notice requirements.

  1. Notice and a copy of the petition for receipt and acceptance of a foreign guardianship shall be served personally on the minor. The notice shall:
    1. State that the minor has a right to a hearing on the petition;
    2. Inform the minor of the procedure to exercise the minor’s right to a hearing; and
    3. State that the minor has the right to independent legal counsel and that the court shall appoint legal counsel for the minor unless the minor has retained counsel or legal counsel has been appointed by the foreign court to represent the minor in the transfer of the guardianship.
  2. Notice and a copy of the petition for receipt and acceptance of a foreign guardianship shall be provided to the foreign court from which the guardianship is to be transferred. Notice to the foreign court shall include a request that the foreign court:
    1. Certify whether:
      1. The foreign court has any record that the guardian has engaged in malfeasance, misfeasance, or nonfeasance during the guardian’s appointment;
      2. Periodic status reports have been filed in a satisfactory manner; and
      3. All bond or other security requirements imposed under the guardianship have been performed; and
    2. Forward copies of all documents filed with the foreign court relating to the guardianship including but not limited to:
      1. The initial petition for guardianship and other filings relevant to the appointment of the guardian;
      2. Reports and recommendations of guardians ad litem, court visitors, or other individuals appointed by the foreign court to evaluate the appropriateness of the guardianship;
      3. Reports of physical and mental health practitioners describing the condition of the minor;
      4. Periodic status reports on the condition of the minor; and
      5. The order to transfer the guardianship.
  3. Notice and a copy of the petition for receipt and acceptance of the guardianship shall be mailed to all other persons named in the petition by first-class mail. The notice shall inform these persons of their right to object to the receipt and acceptance of the guardianship by this state.
  4. The minor shall have 30 days from the date of service to request a hearing on the petition. All other persons to whom notice is given under this Code section shall have 30 days from the date of the mailing of the notice to request a hearing on the petition.
  5. The court may waive the notice requirements of subsections (a) through (c) of this Code section if it finds that:
    1. The guardian has filed a petition in the foreign court for transfer and release of the guardianship to this state;
    2. Notice was given to the minor and all interested persons in conjunction with the petition for transfer and release of the guardianship;
    3. The petitioner provides the court with an authenticated copy of the petition for transfer and release of the guardianship filed with the foreign court and proof that service was made on the minor not more than 90 days from the date the petition for receipt and acceptance of the guardianship is filed in the court; and
    4. The minor is represented by legal counsel with respect to the petition in the foreign court.

History. — Code 1981, § 29-2-66 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-67. Hearing on petition for receipt and acceptance of foreign guardian; stay of proceedings authorized if protest.

  1. On the court’s own motion or upon timely motion by the minor or by any interested person, the court shall hold a hearing to consider the petition for receipt and acceptance of the foreign guardian.
  2. If any interested person challenges the validity of the foreign guardianship or the authority of the foreign court to appoint the guardian, the court may stay its proceeding while the petitioner is afforded the opportunity to have the foreign court hear the challenge and determine its merits.

History. — Code 1981, § 29-2-67 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-68. Required findings of court prior to acceptance of foreign guardianship; orderly transfer; right to petition for guardianship remains.

  1. The court may grant a petition for receipt and acceptance of a foreign guardianship provided the court finds that:
    1. The guardian is presently in good standing with the foreign court; and
    2. The transfer of the guardianship from the foreign jurisdiction is in the best interest of the minor.
  2. Subject to subsection (c) of this Code section, at all times following the entry of the order accepting the guardianship the laws of the State of Georgia shall apply to the guardianship.
  3. In order to coordinate efforts with the foreign court to facilitate the orderly transfer of the guardianship, the court is authorized to:
    1. Delay the effective date of the receipt and acceptance for a reasonable period of time;
    2. Make the receipt and acceptance contingent upon the release of the guardianship or the termination of the guardianship and the discharge of the guardian in the foreign jurisdiction;
    3. Recognize concurrent jurisdiction over the guardianship for a reasonable period of time to permit the foreign court to release the guardianship or to terminate the guardianship and discharge the guardian in the foreign jurisdiction; or
    4. Make other arrangements the court deems necessary to effectuate the receipt and acceptance of the guardianship.
  4. The denial of a petition for receipt and acceptance of the foreign guardianship does not affect the right of a guardian appointed by a foreign court of competent jurisdiction to petition for guardianship under Code Section 29-2-16.

History. — Code 1981, § 29-2-68 , enacted by Ga. L. 2004, p. 161, § 1.

PART 3 Transfer of Guardianship

29-2-69. Minor’s move to a foreign jurisdiction; presumption of permanent move.

  1. A guardian may petition a court of this state which has jurisdiction over the guardianship to transfer the guardianship to a foreign court of competent jurisdiction if the minor has moved permanently to the foreign jurisdiction.
  2. The minor may be presumed to have moved permanently to the foreign jurisdiction if:
    1. The minor has resided in the foreign jurisdiction for more than 12 consecutive months;
    2. The guardian notifies the court that the minor will move or has moved permanently to the foreign jurisdiction; or
    3. A foreign court of competent jurisdiction notifies the court of the filing of a petition for guardianship for the minor in the foreign jurisdiction.
  3. To facilitate the transfer the court may order the guardian to file a petition for receipt and acceptance of the guardianship in the foreign jurisdiction.
  4. If the foreign jurisdiction does not have a procedure for receiving and accepting a foreign guardianship, the court may order the guardian to file a petition for guardianship in the foreign jurisdiction.

History. — Code 1981, § 29-2-69 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-70. Petition to transfer guardianship.

The petition to transfer a guardianship to a foreign jurisdiction shall include the following:

  1. The name and address of the foreign court to which the guardianship shall be transferred and an authenticated copy of the petition for receipt and acceptance of a foreign guardianship if previously filed in the foreign court;
  2. A listing of any other guardianship petitions that are pending in any jurisdiction and the names and addresses of the courts where the petitions have been filed;
  3. The petitioner’s name, address, and county of domicile;
  4. The name, age, and current address of the minor and the new or proposed address of the minor;
  5. The names and current addresses of the adult siblings of the minor, if any;
  6. The name and address of the person responsible for the care and custody of the minor, if other than the petitioner, and of any other individual currently serving as guardian;
  7. The name and address of any legal representative, other than the petitioner, including any legal counsel, guardian ad litem, or court visitor appointed by the foreign court for the minor;
  8. The name and address of the minor’s conservator, if any;
  9. The reason for moving the minor; and
  10. The reason the transfer of the guardianship is in the minor’s best interest.

History. — Code 1981, § 29-2-70 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-71. Notice; requirements.

  1. Notice and a copy of the petition to transfer a guardianship to a foreign jurisdiction shall be served personally on the minor not less than ten days prior to the date set for the hearing. The notice shall state:
    1. The date that the hearing shall be held; and
    2. That the minor has the right to independent legal counsel and that the court shall appoint legal counsel for the minor unless the minor has retained counsel or legal counsel has been appointed by the foreign court to represent the minor in the receipt and acceptance of the guardianship.
  2. Notice and a copy of the petition to transfer the guardianship shall be provided to the foreign court to which the guardianship is to be transferred.
  3. Notice and a copy of the petition shall be mailed to all other persons named in the petition by first-class mail. The notice shall inform these persons of the date of the hearing and of their right to file objections to the transfer of the guardianship by this state.

History. — Code 1981, § 29-2-71 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-72. Hearing.

On the court’s own motion or upon timely motion by the minor or by any interested person, the court shall hold a hearing to consider the petition to transfer the guardianship.

History. — Code 1981, § 29-2-72 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

Am. Jur. Pleading and Practice Forms. —

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

29-2-73. Required finds prior to transfer of guardianship; power of court; orderly and coordinated transfer.

  1. The court may grant a petition to transfer a guardianship to a foreign court of competent jurisdiction if the court finds that the:
    1. Guardian is presently in good standing with the court; and
    2. Transfer of the guardianship to the foreign jurisdiction is in the best interest of the minor.
  2. In order to coordinate efforts with the foreign court to facilitate the orderly transfer of the guardianship the court is authorized to:
    1. Notify the foreign court of any significant problems that may have occurred, including whether periodic reports and accountings have been filed in a satisfactory manner and whether all bond or other security requirements imposed under the guardianship have been performed; and
    2. Forward copies of all documents filed with the court relating to the guardianship, including but not limited to:
      1. The initial petition for guardianship and other filings relevant to the appointment of the guardian;
      2. Reports and recommendations of guardians ad litem, court visitors, or other individuals appointed by the court to evaluate the appropriateness of the guardianship;
      3. Reports of physical and mental health practitioners describing the condition of the minor; and
      4. Periodic status reports on the condition of the minor.
  3. As necessary to coordinate the transfer of the guardianship, the court is authorized to:
    1. Delay the effective date of the transfer for a reasonable period of time;
    2. Make the transfer contingent upon the acceptance of the guardianship or appointment of the guardian in the foreign jurisdiction;
    3. Recognize concurrent jurisdiction over the guardianship for a reasonable period of time to permit the foreign court to accept the guardianship or appoint the guardian in the foreign jurisdiction; or
    4. Make other arrangements that in the sound discretion of the court are necessary to transfer the guardianship.

History. — Code 1981, § 29-2-73 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

Am. Jur. Pleading and Practice Forms. —

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

PART 4 Foreign Guardian

29-2-74. “Foreign guardian” defined; required filings; bond.

  1. For purposes of this part, the term “foreign guardian” means a guardian or other person who has been given responsibility by a court of competent jurisdiction in another state or territory governed by the Constitution of the United States for the care of a minor and whose guardianship has not been transferred to and accepted in this state pursuant to the provisions of Part 2 of this article.
  2. Any foreign guardian of a minor who resides in any other state and who is authorized to sell and convey property of the minor may sell property of the minor which is in this state, under the rules and regulations prescribed for the sale of real estate by conservators of this state, provided that the foreign guardian must file and have recorded in the court or other proper court, at the time of petitioning for sale, an authenticated copy of the letters of appointment as guardian of a minor and must also file with the court or other proper authority bond with good and sufficient security in double the value of the property to be sold for the faithful execution of the guardianship as provided by law.

History. — Code 1981, § 29-2-74 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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.

29-2-75. Right of foreign guardian to bring action to enforce rights of minor.

A foreign guardian may institute an action in any court in this state to enforce any right or to recover any property belonging to the minor or accruing to the foreign guardian as such.

History. — Code 1981, § 29-2-75 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

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.

29-2-76. Filing of authenticated copy of letters of guardianship.

Pending an action brought by a foreign guardian pursuant to Code Section 29-2-75, an authenticated copy of the letters of guardianship shall be filed with the clerk of the court to become a part of the record, if the case is pending in a court of record, or filed with the papers if the action is a summary proceeding.

History. — Code 1981, § 29-2-76 , enacted by Ga. L. 2004, p. 161, § 1.

29-2-77. Submission to jurisdiction by foreign guardian.

A foreign guardian submits personally to the jurisdiction of the courts of this state in any proceeding relating to the guardianship by:

  1. In this state receiving payment of money or taking delivery of personal property belonging to the minor; or
  2. Doing any act as a guardian in this state that would have given this state jurisdiction over the actor as an individual.

History. — Code 1981, § 29-2-77 , enacted by Ga. L. 2004, p. 161, § 1.

CHAPTER 3 Conservators of Minors

Editor’s notes. —

Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides: “all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, § 5 et seq., 54 et seq.

Am. Jur. Trials. —

138 Am. Jur. Trials, Guardianships, § 6.

ALR. —

Surchargeability of trustee, executor, administrator, or guardian, in respect of mortgage investment, as affected by matters relating to value of property, 117 A.L.R. 871 .

Right of guardian of infant or incompetent to appointment as executor or administrator as representative or substitute for infant or incompetent, 135 A.L.R. 585 .

Liability of incompetent’s estate for torts committed by guardian, committee, or trustee in managing estate, 40 A.L.R.2d 1103.

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.

Guardian’s authority, without seeking court approval, to exercise ward’s right to revoke trust, 53 A.L.R.4th 1297.

Involuntary disclosure or surrender of will prior to testator’s death, 75 A.L.R.4th 1144.

Article 1 Property

29-3-1. “Personal property” defined; natural guardian must qualify as conservator; exception.

  1. For purposes of this Code section, “personal property” does not include the value of property that is held for the minor’s benefit in trust or by a custodian under Article 5 of Chapter 5 of Title 44, “The Georgia Transfers to Minors Act.”
  2. The natural guardian of a minor may not receive the personal property of the minor until the natural guardian becomes the legally qualified conservator of the minor; provided, however, that when the total value of all personal property of the minor is $15,000.00 or less, the natural guardian may receive and shall thereafter hold and use all or part of the personal property for the benefit of the minor and shall be accountable for the personal property but shall not be required to become the legally qualified conservator as to that personal property.
  3. Upon receiving an affidavit:
    1. That the value of all the personal property of a minor will not exceed $15,000.00 in value;
    2. That no conservator has been appointed for the minor’s estate; and
    3. That the affiant is the natural guardian of the minor,

      any person indebted to or holding personal property of the minor shall be authorized to pay the amount of the indebtedness or to deliver the personal property to the affiant. In the same manner and upon like proof, any person having the responsibility for the issuance or transfer of stocks, bonds, or other personal property shall be authorized to issue or transfer the stocks, bonds, or personal property to or in the name of the affiant. Upon such payment, delivery, transfer, or issuance pursuant to the affidavit, the person shall be released to the same extent as if the payment, delivery, transfer, or issuance had been made to the legally qualified conservator of the minor and shall not be required to see to the application or disposition of the personal property.

  4. This Code section shall not authorize a temporary, testamentary, or permanent guardian to receive personal property of the minor unless the guardian becomes the legally qualified conservator of the minor.

History. — Code 1981, § 29-3-1 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Parent and child relationship generally, § 19-7-1 et seq.

Circumstances justifying removal of child from parental custody, § 19-7-4 .

Law reviews. —

For article, “Trusts for Dependents: Effect of Georgia’s Support Obligation on Federal Income Taxation,” see 8 Ga. St. B.J. 323 (1972).

For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1794, former Code 1895, § 2513, former Civil Code 1910, § 3032, former Code 1933, § 49-102, and former O.C.G.A. § 29-4-2 are included in the annotations for this Code section.

O.C.G.A. § 19-7-1 and former O.C.G.A. § 29-4-2 must be construed together. —

See McCallum v. Bryant, 212 Ga. 348 , 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).

Necessity for appointing guardian ad litem. —

Whenever a minor appears as a petitioner in instituting litigation by a next friend, there would seem to be no legal necessity to appoint a guardian ad litem, unless, for some reason, it should be made to appear to the court that the next friend is not a suitable person or for some other reason interests of minor would not be properly protected. Sanders v. Hinton, 171 Ga. 702 , 156 S.E. 812 (1931) (decided under former Civil Code 1910, § 3032).

Binding in courts of law and equity. —

Former Code 1868, § 1794 (former O.C.G.A. § 29-4-2 ) was for protection of rights of minor children and was as imperative and binding in courts of equity as in courts of law. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).

For discussion of scope of natural guardianship, see Jordan v. Smith, 5 Ga. App. 559 , 63 S.E. 595 (1909) (decided under former Code 1895, § 2513).

Imbecile minor presents no exception to this rule. Brown v. Gibson, 203 Ga. 213 , 46 S.E.2d 68 (1948) (decided under former Code 1933, § 49-102).

Ward without recourse cannot be bound. —

When child has no recourse against representative, then authority to bind child cannot exist. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 , 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).

Validity of settlement agreement. —

Whether probate court approval was necessary for a valid settlement of the minor’s claim is immaterial to a court’s analysis of whether the offer of settlement was accepted. Benton v. Gailey, 334 Ga. App. 548 , 779 S.E.2d 749 (2015), cert. denied, No. S16C0463, 2016 Ga. LEXIS 221 (Ga. Mar. 7, 2016).

Rights of Natural Guardian

Cannot appoint guardian of person unless natural guardian lost status. —

The probate court has no authority to appoint another as guardian of the person of a child with a living natural guardian unless the loss of that status has been ascertained and declared in some regular proceeding authorized by law, after due notice is given. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ).

When natural mother of illegitimate child showed that she was the child’s mother, that her parental rights had not been relinquished or forfeited in some regular proceeding authorized by law, and that she was, therefore, the natural guardian of the child, the probate court was without jurisdiction to appoint someone else as the guardian of the child’s person. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ).

Mother of illegitimate child is the child’s natural guardian with prima-facie right to custody. Whitlock v. Barrett, 158 Ga. App. 100 , 279 S.E.2d 244 (1981) (decided under former O.C.G.A. § 29-4-2 ); Brown v. King, 193 Ga. App. 495 , 388 S.E.2d 400 (1989) (decided under former O.C.G.A. § 29-4-2 ).

Surviving parent’s right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).

Parent may forfeit rights as guardian by cruel treatment. —

Father has right to be guardian of his minor children, but he may forfeit such right by cruel treatment or neglect of them. McCallum v. Bryant, 212 Ga. 348 , 92 S.E.2d 531 (1956) (decided under former Code 1933, § 49-102).

Parental rights not relinquished by custody agreement. —

Although the petitioner argued the appointment of guardianship was proper because the mother, the natural guardian of the minor children involved, had voluntarily waived her parental rights and consented to the award of guardianship by sworn affidavit, the affidavit clearly conferred only temporary custody, and made no reference to permanent guardianship. Parental rights are not relinquished by an agreement granting mere custody. Hill v. Loren, 187 Ga. App. 71 , 369 S.E.2d 260 (1988) (decided under former O.C.G.A. § 29-4-2 ).

Custody right under divorce decree inures to surviving parent. —

Upon death of parent who has held custody under divorce decree, the right to custody automatically inures to surviving parent, and divorce proceeding fails so far as concerns any further right to custody of children. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-102).

Natural guardian may not sign away child’s chose of action. —

A chose in action is property and a natural guardian has no more authority to sign it away than the guardian would have to sell tangible property of child. Lynn v. Wagstaff Motor Co., 126 Ga. App. 516 , 191 S.E.2d 324 (1972) (decided under former Code 1933, § 49-102).

Bond

Requirement of bond applies to income of property and corpus. —

Provision of former Code 1868, § 1794 (former O.C.G.A. § 29-4-2 ), requiring that guardian give bond before the guardian can demand and receive property of child, applied to income of property as well as to corpus thereof. Southwestern R.R. v. Chapman, 46 Ga. 538 (1872) (decided under former Code 1868, § 1794).

Effect of giving bond by natural guardian. —

The only effect of giving bond by natural guardian is to empower the guardian to demand and receive any property belonging to the child. Drake v. Drake, 187 Ga. 423 , 1 S.E.2d 573 (1939) (decided under former Code 1933, § 49-102).

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. Atty 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. Atty 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.

29-3-2. Release of debtor when collection doubtful.

The natural guardian of a minor who has no conservator may release the debtor and compromise a debt when the collection of the debt is doubtful without becoming the conservator of the minor and without such action being approved by the court if the amount of the debt is $15,000.00 or less.

History. — Code 1981, § 29-3-2 , enacted by Ga. L. 2004, p. 161, § 1.

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 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

29-3-3. “Gross settlement” defined; compromise of claim; finality of settlement.

  1. For purposes of this Code section, the term “gross settlement” means the present value of all amounts paid or to be paid in settlement of the claim, including cash, medical expenses, expenses of litigation, attorney’s fees, and any amounts paid to purchase an annuity or other similar financial arrangement.
  2. If the minor has a conservator, the only person who can compromise a minor’s claim is the conservator.
  3. Whether or not legal action has been initiated, if the proposed gross settlement of a minor’s claim is $15,000.00 or less, the natural guardian of the minor may compromise the claim without becoming the conservator of the minor and without court approval. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.
  4. If no legal action has been initiated and the proposed gross settlement of a minor’s claim is more than $15,000.00, the settlement must be submitted for approval to the court.
  5. If legal action has been initiated and the proposed gross settlement of a minor’s claim is more than $15,000.00, the settlement must be submitted for approval to the court in which the action is pending. The natural guardian or conservator shall not be permitted to dismiss the action and present the settlement to the court for approval without the approval of the court in which the action is pending.
  6. If the proposed gross settlement of a minor’s claim is more than $15,000.00, but the gross settlement reduced by:
    1. Attorney’s fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and
    2. The present value of amounts to be received by the minor after reaching the age of majority

      is $15,000.00 or less, the natural guardian may seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.

  7. If the proposed gross settlement of a minor’s claim is more than $15,000.00, but such gross settlement reduced by:
    1. Attorney’s fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and
    2. The present value of amounts to be received by the minor after reaching the age of majority

      is more than $15,000.00, the natural guardian may not seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor.

  8. If an order of approval is obtained from the court, or a court in which the action is pending, based upon the best interest of the minor, the natural guardian or conservator shall be authorized to compromise any contested or doubtful claim in favor of the minor without receiving consideration for such compromise as a lump sum. Without limiting the foregoing, the compromise may be in exchange for an arrangement that defers receipt of part, not to exceed a total distribution of $15,000.00 prior to a minor reaching the age of majority, or all of the consideration for the compromise until after the minor reaches the age of majority and may involve a structured settlement or creation of a trust on terms which the court approves.
  9. Any settlement entered consistent with the provisions of this Code section shall be final and binding upon all parties, including the minor.

History. — Code 1981, § 29-3-3 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 5/SB 534; Ga. L. 2008, p. 715, § 6/SB 508.

Law reviews. —

For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1882, §§ 2537, 2538, former Civil Code 1910, §§ 4004, 4005, former Code 1933, §§ 49-219, 49-221, and former O.C.G.A. § 29-2-16 are included in the annotations for this Code section.

Compromises of claims and compromises of debts distinguished. —

Former Code 1933, §§ 49-219 and 49-221 (former O.C.G.A. §§ 29-2-16 and 29-2-18 ) were for purpose of distinguishing when guardian can compromise contested or doubtful claim of ward, and when the guardian can compromise a doubtful debt of ward; requirements for compromising a claim and for compromising a debt are different, and are set forth in separate sections. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, §§ 49-219 and 49-221).

Former Civil Code 1910, § 4004 (former O.C.G.A. § 29-2-16 ) did not authorize rescission of contracts. Jones v. Ragan, 136 Ga. 653 , 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4004).

Subject matter to be compromised is claims whose justice and legality may be questioned. Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2537).

Validity of settlement agreement. —

Whether probate court approval was necessary for a valid settlement of the minor’s claim is immaterial to a court’s analysis of whether the offer of settlement was accepted. Benton v. Gailey, 334 Ga. App. 548 , 779 S.E.2d 749 (2015), cert. denied, No. S16C0463, 2016 Ga. LEXIS 221 (Ga. Mar. 7, 2016).

Compromise need not be approved by probate judge. —

There is no requirement that a compromise be approved by the ordinary (now judge of probate court), as is the case with doubtful debts under former Code 1933, § 49-221 (former O.C.G.A. § 29-2-18 ) referring to liquidated contractual demands. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

A probate court clearly has jurisdiction to appoint a guardian for a minor. However, a guardian, once appointed, need not obtain the approval of the probate court to settle a contested or doubtful claim for or against the minor. Accordingly, any settlement of the tort claims of minors to which their duly appointed guardian agreed would not have to be approved by the probate court. King Cotton, Ltd. v. Powers, 200 Ga. App. 549 , 409 S.E.2d 67 (1991), cert. denied, No. S91C1416, 1991 Ga. LEXIS 537 (Ga. Sept. 6, 1991) (decided under former O.C.G.A. § 29-2-16 ).

A guardian of property need not obtain prior approval of the probate court in order to compromise or settle a contested or disputed claim. Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994) (decided under former O.C.G.A. § 29-2-16 ).

Executor’s authority need not be revoked to attack fraudulent agreement. —

Where executor has exceeded authority in entering agreement, the executor’s authority need not be revoked in order to attack such agreement. Empire Life Ins. Co. v. Mason, 140 Ga. 141 , 78 S.E. 935 (1913) (decided at time when law included guardians, administrators, executors and other fiduciaries in its grant of authority to compromise claims; decided under former Civil Code 1910, § 4004).

The probate court’s jurisdiction to approve the settlement of a malpractice claim and to protect the best interests of the incapacitated ward conferred upon that court the authority to require that the ward’s attorneys pay into the registry of court such settlement funds as they disbursed to themselves and to hold them in contempt for their refusal to do so. Gnann v. Woodall, 270 Ga. 516 , 511 S.E.2d 188 (1999) (decided under former O.C.G.A. § 29-2-16 ).

Binding settlement reached. —

Minor’s exemption under O.C.G.A. § 13-5-3 from contractual liability is a personal privilege which others may not assert as a defense; binding settlement agreement was reached between an insurer and a minor injured party even though: (1) a contract of a minor is voidable under O.C.G.A. § 13-3-20(a) ; (2) judicial approval pursuant to former O.C.G.A. § 29-2-16 (e) postdated the settlement agreement; and (3) no guardian had been appointed for the minor at the time the agreement was reached. Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139 , 589 S.E.2d 711 (2003), cert. denied, No. S04C0557, 2004 Ga. LEXIS 313 (Ga. Mar. 29, 2004) (decided under former O.C.G.A. § 29-2-16 ).

For general discussion of former Code 1882, § 2538 (former O.C.G.A. § 29-2-17 ), see Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2538).

On necessity of order of ordinary (now judge of probate court), see Jones v. Ragan, 136 Ga. 653 , 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4005).

Claims Subject to Compromise

“Claim” embraces assertion of liability to party making it to pay sum of money. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

“Claims” is sufficiently broad to include a tort action. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

“Claims” includes demands arising out of tort. —

“Claims” as used in former Code 1933, § 49-219 (former O.C.G.A. § 29-2-16 ) had a technical meaning and implied that a right is in dispute, including a demand arising out of tort. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

Wrongful death action was a property right and could be compromised or settled by a duly appointed guardian of property pursuant to former O.C.G.A. § 29-2-16 . Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994) (decided under former O.C.G.A. § 29-2-16 ).

Effect of Compromise

Guardian may negotiate complete settlement, which is conclusive until set aside in direct proceeding brought for that purpose. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

Compromise settlement is conclusive until set aside. —

Compromise settlement of doubtful “claim” made by guardian is conclusive until set aside in direct proceeding in which guardian is a necessary party. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

Motion to intervene filed after settlement approval sought. —

Trial court’s denial of a co-guardian’s motion to intervene in a lawsuit involving the approval of a settlement to a minor was affirmed because the trial court lacked jurisdiction to consider the motion since the motion was filed two weeks after the defendants had voluntarily dismissed the action seeking the approval of the settlement. Barnes v. Cannon, 347 Ga. App. 517 , 820 S.E.2d 155 (2018).

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.

29-3-4. Disqualifications of conservator.

No person may be appointed or continue to serve as conservator of a minor who:

  1. Is a minor, a ward, or a protected person; or
  2. Has a conflict of interest with the minor unless the court determines that the conflict of interest is insubstantial or that the appointment clearly would be in the minor’s best interest.

History. — Code 1981, § 29-3-4 , enacted by Ga. L. 2004, p. 161, § 1.

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.

29-3-5. Nomination of testamentary conservator; no notice, bond, or security required; rights, powers, and duties.

  1. Every parent, by will, may nominate a testamentary conservator for the parent’s minor child for the property that passes to the minor under the parent’s will.
  2. Upon probate of the will, letters of conservatorship shall be issued to the individual nominated in the parent’s will who shall serve as testamentary conservator without notice or hearing.
  3. A testamentary conservator shall not be required to give bond and security on the property that passes to the minor under the parent’s will, except in the case of waste committed or apprehended, in which case the court may require a bond and security. If the testamentary conservator fails to give bond as required, the court may dismiss the conservator and appoint another conservator. If property accrues or has accrued to the minor from sources other than the parent’s will, the court may appoint a different conservator for such property or may appoint the testamentary conservator for such property and require the testamentary conservator to give bond for the property thus accruing.
  4. In all other respects a testamentary conservator shall have the same rights, powers, and duties as other conservators appointed by the court.

History. — Code 1981, § 29-3-5 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

Cross references. —

Disability of minors with regard to disposal of property generally, § 1-2-8 .

Amount of bond required from guardian of property in probate proceedings, § 53-7-34 (Pre-1998 Probate Code).

Law reviews. —

For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. L. 1851-52, p. 101, § 1, former Code 1882, § 1804, former Civil Code 1895, § 2514, former Civil Code 1910, § 3033, and former Code 1933, § 49-103 are included in the annotations for this Code section.

Statutes providing for appointment of guardians for minor children. —

The general assembly by inclusion of word “minor ” at one place and its exclusion at another did not intend that a parent might, by will, appoint a guardian for property of children who had reached their majority. Therefore, former Code 1933, § 49-103 (former O.C.G.A. § 29-4-3 ) only provided for appointment of guardians for persons and/or property of minor children. Adams v. Lay, 218 Ga. 451 , 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Citation unnecessary in appointing guardian already appointed testamentary guardian. —

In appointing one as guardian of minors, who has already been appointed as testamentary guardian in their father’s will, citation, as ordinarily required by law, is unnecessary. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Parental power does not include power to appoint testamentary guardian. —

One awarded parental power over minor has no power to appoint testamentary guardian for such minor. Lamar v. Harris, 117 Ga. 993 , 44 S.E. 866 (1903) (decided under former Civil Code 1895, § 2514).

Only surviving parent may appoint guardian of person of minor. Adams v. Lay, 218 Ga. 451 , 128 S.E.2d 502 (1962) (decided under former Code 1933, § 49-103).

Surviving parent’s right to custody of child cannot be divested by will of deceased parent. Girtman v. Girtman, 191 Ga. 173 , 11 S.E.2d 782 (1940) (decided under former Code 1933, § 49-103).

Custody does not include power to appoint testamentary guardian. —

Judgment or decree of divorce which gives custody and education of child of marriage to wife, does not empower her to appoint a testamentary guardian for that child while the father survives. Taylor v. Jeter, 33 Ga. 195 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian cannot, by will, transfer custody of the ward to another. Taylor v. Jeter, 33 Ga. 195 (1862) (decided under Ga. L. 1851-52, p. 101, § 1).

Testamentary guardian is still guardian of the person though dismissed for waste or failure to give bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Grandparent named as testamentary guardian should prevail. —

When both parents of infant child are deceased, father having survived mother and by will having provided that his mother should be testamentary guardian of the person of such child, and where in contest between paternal and 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 custody. Shanks v. Ross, 173 Ga. 55 , 159 S.E. 700 (1931) (decided under former Civil Code 1910, § 3033).

Bond

When bond required. —

Bond and security is required from all general guardians appointed by the ordinary (now judge of probate court) and the ordinary has discretionary power to require additional bond and security when the estate of the ward is enlarged by subsequent acquisition. Huson v. Green, 88 Ga. 722 , 16 S.E. 255 (1892) (decided under former Code 1882, § 1804).

Probate court may authorize testamentary guardian to take charge of minor’s estate without requiring bond. —

Nothing in the law indicates that court of ordinary (now probate court) is without jurisdiction to authorize testamentary guardian to take charge of minor’s estate without requiring bond. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Probate court failing to require bond can, nonetheless, issue letters of guardianship. —

Failure to require bond when property comes to ward from sources other than parent’s will does not deprive probate court of original jurisdiction to issue letters of guardianship which cannot be collaterally attacked. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

Letters of guardianship not null and void due to failure to require bond. —

Issuance of letters of guardianship was not null and void because of failure of probate court to require bond from guardian as required by former Code 1910, § 3033 (former O.C.G.A. § 29-4-3(c) ) where property came to ward from sources other than parent’s will. New York Life Ins. Co. v. Gilmore, 171 Ga. 894 , 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 3033).

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.

29-3-6. Power to appoint conservator.

  1. The court of the county in which a minor is found or in which the proposed conservator is domiciled shall have the power to appoint a conservator for the minor.
  2. If a nonresident minor has property in this state, the judge of the court of the county in which the property is located may appoint a conservator who shall have control only over such property.

History. — Code 1981, § 29-3-6 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 6/SB 534.

Cross references. —

Jurisdiction of courts to appoint guardian of child, § 15-11-6 .

Appointment of guardian ad litem in probate proceedings, § 53-3-19 (Pre-1998 Probate Code).

Provision that surviving spouse under 18 years may take share of estate without intervention of guardian, § 53-4-2(3) (Pre-1998 Probate Code).

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

For article, “Trusts for Dependents: Effect of Georgia’s Support Obligation on Federal Income Taxation,” see 8 Ga. St. B.J. 323 (1972).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338, former Code 1868, § 1797, former Code 1882, § 1806, former Civil Code 1895, § 2516, former Civil Code 1910, § 3036, former Code 1933, § 49-105, and former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.

Probate judge has appointment power for benefit of child. —

Power of appointment is vested in ordinary (now judge of probate court), for benefit of child, not of applicant. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Ward’s Right to Select

On appeal the whole case is tried anew, and discretion of ordinary (now judge of probate court) vests in superior court for that trial. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Jurisdiction

Infant’s residence at time guardian appointed determines jurisdiction. —

Infant’s place of residence at time guardian is to be appointed determines jurisdiction; hence the ordinary (now judge of probate court) who appointed the first guardian of a ward may not always appoint the guardian’s successor. Harrison v. Tonge, 67 Ga. App. 54 , 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).

No jurisdiction to appoint guardian for infant residing outside county. —

Ordinary (now judge of probate court) has no jurisdiction to appoint guardian for infant whose residence is out of the county. Rives v. Sneed, 25 Ga. 612 (1858) (decided under Ga. L. 1850, Cobb’s 1851 Digest, p. 338).

Judge of residence approves guardian selection. —

It is for probate judge of ward’s county of residence to approve or disapprove selection. Dickerson v. Bowen, 128 Ga. 122 , 57 S.E. 326 (1907) (decided under former Civil Code 1895, § 2516).

Jurisdiction over removal and new appointments where guardian and ward leave county without removing trust, see Fouts v. Flythe, 54 Ga. App. 108 , 187 S.E. 160 (1936) (decided under former Code 1933, § 49-105).

Jurisdiction is based upon presence of property within county. See Coker v. Gay, 154 Ga. 337 , 114 S.E. 217 (1922) (decided under former Civil Code 1910, § 3036).

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.

29-3-7. Preference among individuals for appointment of conservator; court’s ability to ignore preference for best interest of minor.

  1. The court shall appoint as conservator that person who shall best serve the interest of the minor considering the following order of preferences:
    1. The individual who is the preference of a minor who is 14 years of age or older;
    2. The nearest adult relative of the minor as set forth in Code Section 53-2-1;
    3. Other adult relatives of the minor;
    4. Other adults who are related to the minor by marriage;
    5. A person who was designated in writing by a minor’s natural guardian in a notarized document or document witnessed by two or more persons;
    6. A person who has provided care or support for the minor or with whom the minor has lived; or
    7. The county guardian.
  2. The court may disregard an individual who has preference and appoint a person who has a lower preference or no preference. In determining what is in the best interest of the minor, the court may take into account any facts and circumstances presented to it, including the statement of a minor who is under 14 years of age.

History. — Code 1981, § 29-3-7 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.

Cross references. —

Jurisdiction of courts to appoint guardian of child, § 15-11-6 .

Appointment of guardian ad litem in probate proceedings, § 53-3-19 (Pre-1998 Probate Code).

Provision that surviving spouse under 18 years may take share of estate without intervention of guardian, § 53-4-2(3) (Pre-1998 Probate Code).

Law reviews. —

For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969).

For article, “Trusts for Dependents: Effect of Georgia’s Support Obligation on Federal Income Taxation,” see 8 Ga. St. B.J. 323 (1972).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338, former Code 1868, § 1797, former Code 1882, § 1806, former Civil Code 1895, §§ 2516, 2518, former Civil Code 1910, § 3039, Ga. L. 1922, p. 46, § 1, former Code 1933, §§ 49-105, 49-107, and former O.C.G.A. §§ 29-4-4 and 29-4-8 are included in the annotations for this Code section.

Probate judge has appointment power for benefit of child. —

Power of appointment is vested in ordinary (now judge of probate court), for benefit of child, not of applicant. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb’s 1851 Digest, p. 338).

Guardian of the property. —

Former O.C.G.A. § 29-4-4 authorized a probate court to appoint a guardian of the property, over the natural guardian’s objection, of a minor over the age of 14, whose sole property was a personal injury action. In re Ray, 248 Ga. App. 45 , 545 S.E.2d 617 (2001) (decided under former O.C.G.A. § 29-4-4).

Discussion of former Civil Code 1895, § 2516 (former O.C.G.A. § 29-4-4) application where child had natural guardian. —

See Jordan v. Smith, 5 Ga. App. 559 , 63 S.E. 595 (1909) (decided under former Civil Code 1895, § 2516).

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) See also Johnson v. Kelly, 44 Ga. 485 (1871); Chalker v. Thornton, 31 Ga. App. 791 , 122 S.E. 244 (1924) (decided under former Civil Code 1895, § 2518).

Ward’s Right to Select

At age of 14 ward may choose new guardian. —

Pursuant to former Code 1868, § 1797 (former O.C.G.A. § 29-4-4), a ward, after attaining an age of 14 years, has right to choose a guardian, and for that purpose to have letters of guardianship issued under appointment of ordinary (now judge of probate court) to former guardian, revoked. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1868, § 1797).

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. Atty 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.

29-3-8. Petition for appointment of conservator for minor; requirements of petition; notice.

  1. Any person may file a petition for the appointment of a conservator of a minor.
  2. The petition for appointment of a conservator shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and date of birth of the minor;
    3. The name, address, and county of domicile of the petitioner and the petitioner’s relationship to the minor, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as conservator and that person’s relationship to the minor, if any;
    4. Whether to the petitioner’s knowledge there exists any notarized or witnessed document made by a parent of the minor that deals with the conservatorship of the minor and the name and address of any designee named in the document;
    5. In addition to the petitioner and the nominated conservator, the names and addresses of the following relatives of the minor whose whereabouts are known:
      1. Any parent of the minor whose parental rights have not been terminated;
      2. If there is no parent of the minor whose parental rights have not been terminated, the adult siblings of the minor; provided, however, that not more than three adult siblings need be listed;
      3. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be listed; or
      4. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1;
    6. A description of all known assets, income, other sources of funds, liabilities, and expenses of the minor;
    7. A disclosure of any financial interest that would cause the proposed conservator to have a conflict of interest with the minor;
    8. A specific listing of any of the additional powers, as described in subsections (b) and (c) of Code Section 29-3-22, that are requested by the conservator and a statement of the circumstances that would justify the granting of such powers; and
    9. The reason for any omission in the petition for appointment of conservator of a minor in the event full particulars are lacking.
  3. Notice of the petition for appointment of a conservator for a minor shall be given to any designee named in paragraph (4) of subsection (b) of this Code section and the individuals named in paragraph (5) of subsection (b) of this Code section. The notice shall be by personal service if the individual resides in this state at a known current address; by first-class mail if the individual resides outside this state at a known address; or by publication for two weeks in the official county legal organ for the county in which the petition is filed if no address is known. The notice shall state that the individual is entitled to object either to the establishment of a conservatorship or to the selection of the petitioner as conservator, or both. The notice shall require that any objection be filed in writing with the court within ten days of the personal service, within 14 days of the date of the mailing of the notice, or within ten days of the date of the second publication of the notice.
  4. If the judge deems it necessary, a temporary conservator may be appointed under the same rules that apply to the appointment of a temporary administrator as provided in Article 4 of Chapter 6 of Title 53.

History. — Code 1981, § 29-3-8 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.

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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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 , transferred, 186 Ga. 77 , 196 S.E. 769 (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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

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.

29-3-9. Hearing.

Upon the filing of a petition for the appointment of a conservator of a minor and the giving of notice, the court may hold a hearing and the standard for determination for all matters at issue shall be the best interest of the minor.

History. — Code 1981, § 29-3-9 , enacted by Ga. L. 2004, p. 161, § 1.

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).

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.

29-3-10. Requirements of order granting conservatorship; required filing of certificate.

  1. An order granting conservatorship shall specify:
    1. The name of the conservator and the basis for the selection;
    2. A specific listing of any of the additional powers, as described in subsections (b) and (c) of Code Section 29-3-22 that are granted to the conservator;
    3. If a guardian is also appointed and if the guardian and conservator are not the same person, the reasonable sums or property to be provided to the guardian to provide adequately for the minor’s support, care, education, health, and welfare, subject to modification by subsequent order of the court;
    4. If the minor has an interest in real property, the name of the county in which the real property is located; and
    5. Such other and further provisions of the conservatorship as the court shall determine to be in the best interest of the minor, stating the reasons therefor.
  2. In any case involving the appointment of a conservator, if the minor has an interest in real property, the court shall file, within 30 days of granting the petition for conservatorship, a certificate with the clerk of the superior court of each county in this state in which the minor owns real property, which shall be recorded in the deed records of the county and indexed under the name of the minor in the grantor index. The certificate shall set forth the name of the minor, the expiration date of the conservatorship, the date of the order granting the conservatorship, and the name of the conservator. The certificate shall be accompanied by the same fee required for filing deeds with the clerk of the superior court. The filing fee and any fee for the certificate shall be taxed as costs to the estate.

History. — Code 1981, § 29-3-10 , enacted by Ga. L. 2004, p. 161, § 1.

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), cert. denied, No. S95C1849, 1995 Ga. LEXIS 1211 (Ga. Nov. 3, 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 (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 (1965) (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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

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. Atty 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. Atty 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. Atty 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.

Article 2 Rights of Minor and Obligations of Conservator

29-3-20. Rights of minor; effect on testamentary capacity.

  1. In every conservatorship, the minor has the right to:
    1. A qualified conservator who acts in the best interest of the minor;
    2. A conservator who is reasonably accessible to the minor;
    3. Have the minor’s property utilized as necessary to provide adequately for the minor’s support, care, education, health, and welfare; and
    4. Individually or through the minor’s representative or legal counsel, bring an action relating to the conservatorship.
  2. The appointment of a conservator is not a determination that an individual who is 14 years of age or older lacks testamentary capacity.

History. — Code 1981, § 29-3-20 , enacted by Ga. L. 2004, p. 161, § 1.

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).

29-3-21. Obligations of conservator; liability of conservator.

  1. A conservator shall receive, collect, and make decisions regarding the minor’s property, except as otherwise provided by law or by the court. A conservator shall at all times act as a fiduciary in the minor’s best interest and exercise reasonable care, diligence, and prudence.
  2. A conservator shall:
    1. Respect the rights and dignity of the minor;
    2. Be reasonably accessible to the minor and maintain regular communication with the minor;
    3. Petition to have a guardian appointed if necessary;
    4. Endeavor to cooperate with the guardian, if any;
    5. Provide for the support, care, education, health, and welfare of the minor, considering available resources;
    6. Give such bond as required by Code Section 29-3-40;
    7. Within two months of appointment, file with the court and provide to the guardian, if any, an inventory of the minor’s property and a plan for administering the property, pursuant to the provisions of Code Section 29-3-30;
    8. Take into account any estate plan of the minor known to the conservator in the administration of the conservatorship;
    9. Keep accurate records including adequate supporting data and file annual returns as required by Code Section 29-3-60;
    10. Promptly notify the court of any conflict of interest between the minor and the conservator when the conflict arises or becomes known to the conservator and take such action as is required by Code Section 29-3-23;
    11. Keep the court informed of the conservator’s current address; and
    12. Act promptly to terminate the conservatorship when the minor reaches the age of majority.
  3. A conservator, solely by reason of the conservator-minor relationship, is not personally liable for:
    1. The minor’s expenses;
    2. Contracts entered into in the conservator’s fiduciary capacity;
    3. The acts or omissions of the minor;
    4. Obligations arising from ownership or control of property of the minor; or
    5. Other acts or omissions occurring in the course of the conservatorship.

History. — Code 1981, § 29-3-21 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Administrator’s duty to file inventory, § 53-7-75 (Pre-1998 Probate Code).

Law reviews. —

For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

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 (Ga. Ct. App. 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).

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.

29-3-22. Power of conservator; cooperation with guardian of minor.

  1. Without court order, the appointment of a conservator shall vest in the conservator the exclusive power to:
    1. Make reasonable disbursements from the annual income or, if applicable, from the annual budget amount that has been approved by the court pursuant to Code Section 29-3-30 for the support, care, education, health, and welfare of the minor;
    2. Enter into contracts for labor or services upon such terms as the conservator may deem best, but only to the extent that the annual compensation payable under such contracts when combined with other anticipated disbursements does not exceed the amount of the annual income or, if applicable, the annual budget amount which has been approved by the court pursuant to Code Section 29-3-30;
    3. Borrow money for one year or less and bind the minor or the minor’s property, but only if the amount of the annual payments when combined with other anticipated disbursements does not exceed the amount of the annual income or, if applicable, the annual budget amount that has been approved by the court pursuant to Code Section 29-3-30 and only if done for purposes of paying the minor’s debts, providing for the support, care, education, health, or welfare of the minor, or repairing the minor’s dwelling place;
    4. Receive, collect, and hold the minor’s property, additions to the minor’s property, and all related records;
    5. Retain the property received by the conservator upon the creation of the conservatorship in accordance with the provisions of Code Section 29-3-31;
    6. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the minor in the name of or on behalf of the minor;
    7. Fulfill, as far as possible, or, to the extent permitted by law, disaffirm the executory contracts and comply with the executed contracts of the minor;
    8. Examine the will and any other estate planning documents of the minor;
    9. Appoint an attorney in fact to act for the conservator when the conservator is unable to act; provided, however, that the conservator and the conservator’s sureties shall be bound for the acts of the attorney as if the acts were the personal acts of the conservator;
    10. Invest the minor’s property pursuant to the provisions of Code Sections 29-3-32 and 29-3-33;
    11. Sell the minor’s stocks and bonds pursuant to the provisions of subsection (b) of Code Section 29-3-35;
    12. Compromise any contested or doubtful claim for or against the minor if the proposed gross settlement as defined in Code Section 29-3-3 is in the amount of $15,000.00 or less; and
    13. Release the debtor and compromise all debts in the amount of $15,000.00 or less when the collection of the debt is doubtful.
    1. In the petition for appointment, or at any time during the conservatorship, the conservator may request the continuing power to:
      1. Invest the minor’s property in investments other than those authorized in Code Section 29-3-32, pursuant to the provisions of Code Section 29-3-34, without further court approval of any investment;
      2. Sell, rent, lease, exchange, or otherwise dispose of any or all of the minor’s real or personal property without complying with the provisions of Code Section 29-3-35, other than the provisions for additional bond set forth in subsection (e) of Code Section 29-3-35;
      3. Continue the operation of any farm or business in which the minor has an interest; or
      4. Access the digital assets of the minor, pursuant to Code Section 53-13-20.
    2. Unless the request for the powers described in paragraph (1) of this subsection is made in the petition for the initial appointment of the conservator, the court shall order such hearing as the court deems appropriate. Notice shall be given by personal service to the minor and a guardian ad litem appointed for the minor. Notice shall be given by first-class mail to the guardian of the minor, if any; the surety on the conservator’s bond; and to the following relatives of the minor whose whereabouts are known:
      1. Any parent of the minor whose parental rights have not been terminated;
      2. If there is no parent of the minor whose parental rights have not been terminated, the adult siblings of the minor; provided, however, that not more than three adult siblings need to be notified;
      3. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need to be notified; or
      4. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined as set forth in Code Section 53-2-1.
  2. After appointment of a guardian ad litem for the minor and such hearing as the court deems appropriate, in granting the petition for appointment of conservator or at any time during the conservatorship, the court may grant the conservator any of the following powers on a case-by-case basis:
    1. To make disbursements that exceed by no more than a specific amount the annual income or, if applicable, the annual budget amount which has been approved by the court pursuant to Code Section 29-3-30 for the support, care, education, health, and welfare of the minor;
    2. To enter into contracts for labor or services for which the compensation payable under the contracts when combined with other disbursements from the estate exceeds the annual income or, if applicable, the annual budget amount which has been approved by the court pursuant to Code Section 29-3-30;
    3. To make specific investments of the minor’s property that do not comply with the provisions of Code Section 29-3-32, pursuant to the provisions of Code Section 29-3-34;
    4. To sell, rent, lease, exchange, or otherwise dispose of specific items of the minor’s real or personal property without complying with the provisions of Code Section 29-3-35 other than the provisions for additional bond set forth in subsection (e) of Code Section 29-3-35;
    5. Pursuant to the provisions of Code Section 29-3-3, to compromise a contested or doubtful claim for or against the minor if the proposed gross settlement as defined in Code Section 29-3-3 is more than the amount of $15,000.00;
    6. To release the debtor and compromise a debt which is in the amount of more than $15,000.00 when the collection of the debt is doubtful;
    7. To establish or add property to a trust for the benefit of the minor; provided, however, that the trust must provide that the minor may revoke the trust at any time after reaching the age of majority and, unless otherwise provided by court order pursuant to Code Section 29-3-36, the trust shall terminate upon the minor’s death and any property remaining in the trust shall be paid to the minor’s estate;
    8. To disclaim or renounce any property or interest in property of the minor in accordance with the provisions of Code Section 53-1-20;
    9. To access the digital assets of the minor pursuant to Code Section 53-13-20;
    10. To engage in estate planning for the minor pursuant to the provisions of Code Section 29-3-36; and
    11. To perform such other acts as may be in the best interest of the minor.
  3. In granting any of the powers described in subsections (b) and (c) of this Code section, the court shall consider the views of the guardian, if available, or, if there is no guardian, of others who have custody of the minor.
  4. In performing any of the acts described in this Code section, the conservator shall endeavor to cooperate with the guardian or, if there is no guardian, with others who have custody of the minor.

History. — Code 1981, § 29-3-22 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 7/SB 534; Ga. L. 2011, p. 752, § 29/HB 142; Ga. L. 2018, p. 1089, § 5/SB 301; Ga. L. 2019, p. 693, § 3/HB 70.

The 2018 amendment, effective July 1, 2018, in paragraph (b)(1), deleted “or” at the end of subparagraph (b)(1)(B), added “; or” at the end of subparagraph (b)(1)(C), and added subparagraph (b)(1)(D).

The 2019 amendment, effective January 1, 2020, added paragraph (c)(9) and redesignated former paragraphs (c)(9) and (c)(10) as present paragraphs (c)(10) and (c)(11), respectively.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Bond required of guardians of minors, § 29-4-12 .

Contracts for labor or service by trustees and administrators, § 53-7-8 (Pre-1998 Probate Code).

Private sale of certain stocks and bonds by guardian, § 53-8-37 (Pre-1998 Probate Code).

Revised Uniform Fiduciary Access to Digital Assets Act, § 53-13-1 et seq.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2004, “Code Section 29-3-35” was substituted for “Code Section 2-3-35” in subparagraph (b)(1)(B) and paragraph (c)(4); and “or” was added following the semicolon at the end of subparagraph (b)(2)(C).

Law reviews. —

For article discussing the custodian as a fiduciary under the Gifts to Minors Act (O.C.G.A. Title 44, Chapter 5, Article 5), see 7 Ga. St. B.J. 175 (1970).

For article, “The Child as a Party in Interest in Custody Proceedings,” see 10 Ga. St. B.J. 577 (1974).

For article, “The Scope of Permissible Investments by Fiduciaries Under Georgia Law,” see 19 Ga. St. B.J. 6 (1982).

For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).

For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990).

For article, “Wills, Trusts & Administration of Estates,” see 53 Mercer L. Rev. 499 (2001).

For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 204 (2018).

For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Laws 1809, Cobb’s 1851 Digest, p. 315, former Code 1859, p. 37, § 1, former Code 1868, § 1815, former Code 1873, §§ 1824, 1838, 2539, former Code 1882, §§ 1824, 2537, 2538, 2539, former Code 1895, §§ 2541, 2571, former Civil Code 1895, §§ 3432, 4630, former Civil Code 1910, §§ 3060, 3065, 4004, 4005, 4008, 5176, former Code 1933, §§ 49-202, 49-204, 49-213, 49-215, 49-216, 49-217, 49-219, 49-221, and 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-2-16 are included in the annotations for this Code section.

Primarily income, and not corpus, of ward’s property is to be expended for the purpose of education, maintenance, and making necessary repairs on the ward’s property. Little v. West, 145 Ga. 563 , 89 S.E. 682 (1916) (decided under former Civil Code 1910, § 3060).

Guardian is entitled to charge a ward with necessary medical expenses incurred. Poole v. Wilkinson, 42 Ga. 539 (1871) (decided under former Code 1868, § 1815).

Attorney’s fees. —

Attorney’s fees incurred in guardian’s attempt to require minor children’s mother to support her children were denied as extra compensation, where such action by the guardian was not necessary nor beneficial to the wards’ estates. Whitehurst v. Singletary, 77 Ga. App. 811 , 50 S.E.2d 80 (1948) (decided under former Code 1933, § 49-202).

Guardian entitled to reasonable attorney’s fees incurred in suits for collection of moneys to which ward was entitled. Royston v. Royston, 29 Ga. 82 (1859) (decided under former Ga. L. 1859, p. 37, § 1); Zellner v. Cleveland, 69 Ga. 631 (1882) (decided under former Code 1882, § 1824).

Expenses incurred in opposition to ward’s petition for restoration. —

Where ward’s mental condition is in doubt, and guardian acts in good faith in opposing ward’s petition for restoration, the guardian is entitled to recover reasonable and necessary expenses so incurred, including attorney fees. Woodruff v. Trust Co., 233 Ga. 135 , 210 S.E.2d 321 (1974) (decided under former Code 1933, § 49-202).

Guardian entitled to reimbursement for payment of taxes. —

Where real estate of ward is impressed by liens for municipal taxes and street pavement assessments, and the guardian pays them off, the guardian will be allowed, in an equitable accounting, to encroach upon corpus of estate for reimbursement, where there are not sufficient funds arising from income. English v. English, 149 Ga. 404 , 100 S.E. 362 (1919) (decided under former Civil Code 1910, § 3060).

Determination of necessities. —

For a determination of what are necessities where representations are made by ward to guardian, see Little v. West, 145 Ga. 563 , 89 S.E. 682 (1916) (decided under former Civil Code 1910, § 3060).

Permanent improvements. —

Guardian not authorized to sell or encumber property of ward for purpose of erecting permanent improvements on it; or, if the guardian erects permanent improvements on it with the guardian’s own money, the guardian cannot obtain a legal order of the ordinary (now judge of probate court), or court of ordinary (now probate court), to sell it for reimbursement of guardian’s expenses. Burke & Williams v. Mackenzie, 124 Ga. 248 , 52 S.E. 653 (1905) (decided under former Civil Code 1895, § 2541); Little v. West, 145 Ga. 563 , 89 S.E. 682 (1916) (decided under former Civil Code 1910, § 3060); Sturgis v. Davis, 157 Ga. 352 , 121 S.E. 318 (1924) (decided under former Civil Code 1910, § 3060).

Equity jurisdiction of estates of wards of chancery is broad, comprehensive, and plenary. Turner v. Prigmore, 202 Ga. 377 , 43 S.E.2d 259 (1947) (decided prior to 1958 amendment of former Code 1933, § 49-204).

Guardian may be authorized to sell vested remainder. —

While guardian of minor cannot sell a contingent interest under order of the ordinary (now judge of probate court), the guardian may sell the vested estate in remainder of ward under order of the court of ordinary (now probate court). Calhoun v. Thompson, 171 Ga. 286 , 155 S.E. 183 (1930) (decided under former Civil Code 1910, § 3065).

Guardian may convey estate for years. —

By complying with statutory provisions, guardians can convey an estate for years, after due advertisement and proper application to superior court (now within jurisdiction of probate court), and order of the judge thereon, for purpose of reinvestment. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Lease of estate for years is in effect a sale. —

Sale of lands by guardian for reinvestment may be made at public or private sale under direction of judge of superior court (now within jurisdiction of judge of probate court) and the lease of an estate for years of lands is in effect the sale of an estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Order of court authorizing long-term lease with option to buy ward’s land was valid. Union Camp Corp. v. Youmans, 227 Ga. 687 , 182 S.E.2d 468 (1971) (decided under former Code 1933, § 49-204).

Guardian not to allow conflict of interest. —

A guardian may not act in such a way that the guardian’s own personal interest may come in conflict with interest of ward with respect to estate of latter. Allen v. Wade, 203 Ga. 753 , 48 S.E.2d 538 (1948) (decided under former Code 1933, § 49-204).

Sale by guardian presumed to be in best interests of ward. —

Sale of property by guardian on behalf of minor ward is presumed to be in best interests of ward and such sales are required to be consummated under supervision and direction of probate court. Merritt v. DOT, 147 Ga. App. 316 , 248 S.E.2d 689 (1978), rev'd, Department of Transp. v. Merritt, 243 Ga. 52 , 252 S.E.2d 508 (1979) (decided under former Code 1933, § 49-204).

Negotiations for sale prior to obtaining court order allowed. —

Guardians can, before they obtain an order of court, enter into negotiations looking to private sale or lease of an estate for years, and such action on their part would not be contrary to public policy nor illegal. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667 , 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Sale without required court order not binding upon ward. —

Sale of realty belonging to minors by guardian without order from court of ordinary (now probate court) is not binding upon them. Wells v. Chaffin, 60 Ga. 677 (1878) (decided under former law).

Purchaser claiming title due to guardian’s sale must show order. —

Purchaser of real estate claiming title by virtue of guardian’s sale must show order of ordinary (now judge of probate court) granting to guardian leave to sell it. Wells v. Chaffin, 60 Ga. 677 (1878) (decided under former law).

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 Laws 1809, Cobb’s 1851 Digest, p. 315).

Finding a purchaser for property was a service within meaning of former Code 1933, § 49-213 (former O.C.G.A. § 29-2-11 ). Turner v. Prigmore, 202 Ga. 377 , 43 S.E.2d 259 (1947) (decided under former Code 1933, § 49-213).

Reference to county in former Code 1933, § 49-213 (former O.C.G.A. § 29-2-11 ) referred to county wherein jurisdiction of guardianship laid. Turner v. Prigmore, 202 Ga. 377 , 43 S.E.2d 259 (1947) (decided under former Code 1933, § 49-213).

For limitation of authority of testamentary guardian of incompetent to whom life estate has been devised, see Greer v. Greer, 218 Ga. 416 , 128 S.E.2d 51 (1962) (decided under former Code 1933, § 49-213).

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 (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. App. 431 , 149 S.E. 799 (1929), vacated, 43 Ga. App. 442 , 159 S.E. 288 (1931), rev'd, 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).

Compromises of claims and compromises of debts distinguished. —

Former Code 1933, §§ 49-219 and 49-221 (former O.C.G.A. §§ 29-2-16 and 29-2-18 ) were for purpose of distinguishing when guardian can compromise contested or doubtful claim of ward, and when the guardian can compromise a doubtful debt of ward; requirements for compromising a claim and for compromising a debt are different, and are set forth in separate sections. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, §§ 49-219 and 49-221).

Former Civil Code 1910, § 4004 (former O.C.G.A. § 29-2-16 ) did not authorize rescission of contracts. Jones v. Ragan, 136 Ga. 653 , 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4004).

Subject matter to be compromised is claims whose justice and legality may be questioned. Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2537).

Compromise need not be approved by probate judge. —

There is no requirement that a compromise be approved by the ordinary (now judge of probate court), as is the case with doubtful debts under former Code 1933, § 49-221 (former O.C.G.A. § 29-2-18 ) referring to liquidated contractual demands. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

A probate court clearly has jurisdiction to appoint a guardian for a minor. However, a guardian, once appointed, need not obtain the approval of the probate court to settle a contested or doubtful claim for or against the minor. Accordingly, any settlement of the tort claims of minors to which their duly appointed guardian agreed would not have to be approved by the probate court. King Cotton, Ltd. v. Powers, 200 Ga. App. 549 , 409 S.E.2d 67 (1991), cert. denied, No. S91C1416, 1991 Ga. LEXIS 537 (Ga. Sept. 6, 1991) (decided under former O.C.G.A. § 29-2-16 ).

A guardian of property need not obtain prior approval of the probate court in order to compromise or settle a contested or disputed claim. Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994) (decided under former O.C.G.A. § 29-2-16 ).

Executor’s authority need not be revoked to attack fraudulent agreement. —

Where executor has exceeded authority in entering agreement, the executor’s authority need not be revoked in order to attack such agreement. Empire Life Ins. Co. v. Mason, 140 Ga. 141 , 78 S.E. 935 (1913) (decided at time when law included guardians, administrators, executors and other fiduciaries in its grant of authority to compromise claims; decided under former Civil Code 1910, § 4004).

Probate court’s jurisdiction to approve the settlement of a malpractice claim and to protect the best interests of the incapacitated ward conferred upon that court the authority to require that the ward’s attorneys pay into the registry of court such settlement funds as they disbursed to themselves and to hold them in contempt for their refusal to do so. Gnann v. Woodall, 270 Ga. 516 , 511 S.E.2d 188 (1999) (decided under former O.C.G.A. § 29-2-16 ).

Binding settlement reached. —

Minor’s exemption under O.C.G.A. § 13-5-3 from contractual liability is a personal privilege which others may not assert as a defense; binding settlement agreement was reached between an insurer and a minor injured party even though: (1) a contract of a minor is voidable under O.C.G.A. § 13-3-20(a) ; (2) judicial approval pursuant to former O.C.G.A. § 29-2-16 (e) postdated the settlement agreement; and (3) no guardian had been appointed for the minor at the time the agreement was reached. Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139 , 589 S.E.2d 711 (2003), cert. denied, No. S04C0557, 2004 Ga. LEXIS 313 (Ga. Mar. 29, 2004) (decided under former O.C.G.A. § 29-2-16 ).

For general discussion of former Code 1882, § 2538 (former O.C.G.A. § 29-2-17 ), see Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2538).

On necessity of order of ordinary (now judge of probate court), see Jones v. Ragan, 136 Ga. 653 , 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4005).

Compliance with section necessary for validity of compromise order. —

The ordinary’s (now judge of probate court) direction to compromise doubtful debt belonging to estate was worth nothing to executor unless it appeared that requirements of former Code 1873, § 2539 (former O.C.G.A. § 29-2-18 ) had been complied with. Ponce v. Wiley, 62 Ga. 118 (1878) (decided under former Code 1873, § 2539, which included guardians, administrators, executors and other fiduciaries in its grant of authority to compromise debts).

Compromise of claims and compromise of debts distinguished. —

Former Code 1933, § 49-221 (former O.C.G.A. § 29-2-16 ) was for purpose of distinguishing when guardian could compromise contested or doubtful claim of ward, and when guardian could compromise a doubtful debt of ward; requirements for compromising a claim and for compromising a debt were different, and were set forth in separate sections. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

Subject matter to be compromised is debts, true and real, but doubtful as to solvency. Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2539).

“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 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

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).

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).

Authority of Probate Judge

Probate judge may ratify certain actions of guardian. —

Where trustee has acted fairly and properly without previous consent of the ordinary (now judge of probate court), and where prompt and regular annual returns of the trustee’s actions in that behalf have been made, the ordinary (now judge), by approving such returns, may ratify the action. Dowling v. Feeley, 72 Ga. 557 (1884) (decided under former Code 1882, § 1824); Shipp v. McCowen, 147 Ga. 711 , 95 S.E. 251 (1918) (decided under former Civil Code 1910, § 3060).

Probate judge may consent to expenditures exceeding profits. —

Ordinary (now judge of probate court) may consent to expenditures exceeding annual profits of ward’s estate for expenses of maintenance and education by approving the regular annual returns of the guardian, which show on their face that expenses have exceeded income. Cook v. Rainey, 61 Ga. 452 (1878) (decided under former Code 1873, § 1824); Sturgis v. Davis, 157 Ga. 352 , 121 S.E. 318 (1924) (decided under former Civil Code 1910, § 3060); Banister v. Bagley, 56 Ga. App. 615 , 193 S.E. 480 (1937) (decided under former Code 1933, § 49-202); Bailey v. McElroy, 61 Ga. App. 367 , 6 S.E.2d 140 (1939) (decided under former Code 1933, § 49-202).

Probate judge cannot delegate his discretion. —

Discretion to encroach upon corpus for maintenance and education of ward is confined to the ordinary (now judge of probate court) and the ordinary cannot relegate it to another. Shipp v. McCowen, 147 Ga. 711 , 95 S.E. 251 (1918) (decided under former Civil Code 1910, § 3060).

Notice

Notice requirement is jurisdictional. —

Requirement of former Code 1933, §§ 49-204 and 49-205 (former O.C.G.A. §§ 29-2-4 and 29-2-5 ) as to citation and notice to ward prior to leave to sell, exchange or encumber the ward’s property is jurisdictional, and the ordinary (now judge of probate court) acts without jurisdiction by granting an order to sell without the required notice having been given. Fuller v. Dillon, 220 Ga. 36 , 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Showing lack of notice rebuts presumption of validity of sale. —

Though a judgment of an ordinary (now judge of probate court) granting leave to sell being regular upon its face is presumptively valid, such presumption is only prima facie and may be rebutted by evidence showing that jurisdictional fact of publication of notice had not been accomplished at time of grant of order. Fuller v. Dillon, 220 Ga. 36 , 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Adequacy of notice under former O.C.G.A. § 29-2-4 . —

See Union Camp Corp. v. Youmans, 227 Ga. 687 , 182 S.E.2d 468 (1971) (decided under former Code 1933, § 49-204).

Ward may appear by next friend. —

Former Code 1933, § 49-204 (former O.C.G.A. § 29-2-4 ) contemplated right of ward to be heard, and where ward was incompetent to appear in person, the ward had right to appear by next friend. Fuller v. Dillon, 220 Ga. 36 , 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Claims Subject to Compromise

“Claim” embraces assertion of liability to party making it to pay sum of money. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

“Claims” is sufficiently broad to include a tort action. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

“Claims” includes demands arising out of tort. —

“Claims” as used in former Code 1933, § 49-219 (former O.C.G.A. § 29-2-16 ) had a technical meaning and implied that a right is in dispute, including a demand arising out of tort. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

Wrongful death action was a property right and could be compromised or settled by a duly appointed guardian of property pursuant to former O.C.G.A. § 29-2-16 . Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994) (decided under former O.C.G.A. § 29-2-16 ).

Effect of Compromise

Guardian may negotiate complete settlement, which is conclusive until set aside in direct proceeding brought for that purpose. Macris v. Laughlin Insulation Co., 124 Ga. App. 573 , 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

Compromise settlement is conclusive until set aside. —

Compromise settlement of doubtful “claim” made by guardian is conclusive until set aside in direct proceeding in which guardian is a necessary party. Campbell v. Atlanta Coach Co., 58 Ga. App. 824 , 200 S.E. 203 , transferred, 186 Ga. 77 , 196 S.E. 769 (1938) (decided under former Code 1933, § 49-221).

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.

29-3-23. Rights of conservator to property; disclosure of conflicts of interest.

  1. The appointment of a conservator shall not automatically cause the conservator to forfeit any rights to property.
  2. The conservator must promptly disclose any conflict of interest between the conservator and the minor when it arises or becomes known to the conservator and seek the court’s determination as to whether the conflict is insubstantial or whether it is in the best interest of the minor for the conservator to continue to serve and not forfeit any property right. If the court finds that the conflict of interest is substantial or contrary to the best interest of the minor, the conservator may either resign or forfeit the property interest that is the source of the conflict.
  3. A transaction affected by a substantial conflict between personal and fiduciary interests includes any sale, encumbrance, or other transaction involving the conservatorship estate entered into by the conservator or the spouse, descendant, agent, or lawyer of the conservator or a corporation or other enterprise in which the conservator has a significant beneficial interest.

History. — Code 1981, § 29-3-23 , enacted by Ga. L. 2004, p. 161, § 1.

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

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.

29-3-24. Oath of conservator.

Before entering upon the duties of the appointment, every conservator appointed pursuant to the terms of this chapter shall take an oath or affirmation before the court to perform well and truly the duties required of a conservator and to account faithfully for the estate. The oath or affirmation of a conservator may be subscribed before the judge or clerk of any probate court of this state. The judge of the probate court who appoints the conservator shall have the authority to grant a commission to a judge or clerk of any court of record of any other state to administer the oath or affirmation.

History. — Code 1981, § 29-3-24 , enacted by Ga. L. 2004, p. 161, § 1.

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.

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 .

Article 3 Property Obligations of Conservator

29-3-30. Inventory of minor’s property; plan for managing, expending, and distributing minor’s property.

  1. Within two months of appointment, the conservator shall file with the court and provide to the minor’s guardian, if any, an inventory of the minor’s property and a plan for managing, expending, and distributing the property.
  2. The inventory shall describe all the assets and liabilities of the minor and shall include a list of all the personal and real property owned by the minor and describe how the property is titled. When the inventory is returned to the court, the conservator shall swear or affirm, in addition to the usual oath on making returns, that the inventory contains a true statement of all the assets and liabilities of the minor which are known to the conservator.
  3. The plan for managing, expending, and distributing the minor’s property must be based on the actual needs of the minor and take into consideration the best interest of the minor. The conservator shall include in the plan projections for expenses and resources and any proposals to change the title of any of the assets in the conservatorship estate. The plan and any proposed budget for the expenditure of funds in excess of the anticipated income from the property must be approved by the court. With each annual return filed thereafter, the conservator shall file with the court and provide to the guardian, if any, an updated plan pursuant to the provisions of this subsection.

History. — Code 1981, § 29-3-30 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Administrator’s duty to file inventory, § 53-7-75 (Pre-1998 Probate Code).

RESEARCH REFERENCES

C.J.S. —

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

29-3-31. Retention of property or securities; exchange or conversion of assets.

  1. A conservator may retain the property received by the conservator on the creation of the conservatorship, including, in the case of a corporate fiduciary, stock or other securities of its own issue, even though the property may not otherwise be a legal investment and shall not be liable for the retention, except for gross neglect. In the case of corporate securities, the conservator may likewise retain any securities into which the securities originally received may be converted or which may be derived therefrom as a result of merger, consolidation, stock dividends, splits, liquidations, and similar procedures; and the conservator may exercise by purchase or otherwise any rights, warrants, or conversion features attaching to any such securities.
  2. In the case of a corporate fiduciary, the authority granted in subsection (a) of this Code section shall apply to the exchange or conversion of stock or securities of the corporate fiduciary’s own issue, whether or not any new stock or securities received in exchange therefor are substantially equivalent to those originally held; and such authority shall also apply to the continued retention of all new stock and securities resulting from merger, consolidation, stock dividends, splits, liquidations, and similar procedures and received by virtue of such conversion or exchange of stock or securities of the corporate fiduciary’s own issue, whether or not the new stock or securities are substantially equivalent to those originally received by the fiduciary. The foregoing authority shall have reference, inter alia, to the exchange of such stock or securities for stock or securities of any holding company which owns stock or other interests in one or more other corporations including the corporate fiduciary, whether the holding company is newly formed or already existing, and whether or not any of the corporations own assets identical or similar to the assets of or carry on business identical or similar to the corporation whose stock or securities were previously received by the fiduciary and the continued retention of stock or securities, or both, of the holding company; and such authority shall apply regardless of whether any of the corporations have officers, directors, employees, agents, or trustees in common with the corporation whose stock or securities were previously received by the fiduciary.

History. — Code 1981, § 29-3-31 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-32. Investment of funds.

A conservator is authorized to invest estate funds in the following and shall not otherwise be liable for such investment, except in the case of gross neglect:

  1. Bonds issued by any county or municipality of this state which have been validated as required by law for the validation of county and municipal bonds;
  2. Bonds issued by any county board of education under Subpart 1 of Part 3 of Article 9 of Chapter 2 of Title 20 for the purpose of building and equipping schoolhouses, which bonds have been validated and confirmed as required under Part 1 of Article 2 of Chapter 82 of Title 36;
  3. Bonds and other securities issued by this state or by the Board of Regents of the University System of Georgia;
  4. Bonds or other obligations issued by the United States government and bonds of any corporation created by an act of Congress, the bonds of which are guaranteed by the United States government;
  5. Interest-bearing deposits in any financial institution located in this state, to the extent the deposits are insured by the Federal Deposit Insurance Corporation, the National Credit Union Share Insurance Fund, or comparable insurance;
  6. Bonds or other obligations issued by a housing authority pursuant to Article 1 of Chapter 3 of Title 8 or issued by any public housing authority or agency of the United States when such bonds or other obligations are secured by a pledge of annual contributions to be paid by the United States government or any agency thereof, as authorized by Code Section 8-3-81;
  7. Bonds or other obligations issued by a housing authority in connection with a redevelopment program pursuant to Chapter 4 of Title 8, as authorized by Code Section 8-4-11;
  8. Bonds issued by the Georgia Education Authority, pursuant to Part 3 of Article 11 of Chapter 2 of Title 20, as authorized by Code Section 20-2-570;
  9. Reserved;
  10. Bonds issued by the Georgia Highway Authority, pursuant to Code Section 32-10-30, as authorized by Code Section 32-10-45;
  11. Bonds or other obligations issued by a municipality or county pursuant to Chapter 61 of Title 36 or by any urban redevelopment agency or housing authority vested with urban redevelopment project powers under Code Section 36-61-17, provided that such bonds or other obligations are secured by an agreement between the issuer and the federal government in accordance with Code Section 36-61-13, as authorized by Code Section 36-61-13;
  12. Reserved;
  13. Farm loan bonds issued by federal land banks or joint-stock land banks under the Federal Farm Loan Act, 12 U.S.C. Sections 2001, et seq., and any notes, bonds, debentures, or other similar obligations, consolidated or otherwise, issued by farm credit institutions pursuant to the Farm Credit Act of 1971, 12 U.S.C. Sections 2001, et seq.;
  14. Real property loans:
    1. Which are not in default;
    2. Which are secured by mortgages or deeds to secure debt conveying a first security title to improve real property;
    3. Which are insured pursuant to the National Housing Act, 12 U.S.C. Sections 1701, et seq.; and
    4. With respect to which loans, on or after default, pursuant to such insurance, debentures in at least the full amount of unpaid principal are issuable, which debentures are fully and unconditionally guaranteed both as to principal and interest by the United States; and
  15. Any other investments which are designated under the laws of this state as lawful or legal investments for guardians or conservators.

History. — Code 1981, § 29-3-32 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2010, p. 579, § 14/SB 131; Ga. L. 2012, p. 775, § 29/HB 942; Ga. L. 2013, p. 141, § 29/HB 79.

Law reviews. —

For article, “The Scope of Permissible Investments by Fiduciaries Under Georgia Law,” see 19 Ga. St. B.J. 6 (1982).

For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

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 (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. App. 431 , 149 S.E. 799 (1929), vacated, 43 Ga. App. 442 , 159 S.E. 288 (1931), rev'd, 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).

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.

29-3-33. Investment in securities; open-end or closed-end management type investments; conflicts of interest.

  1. Whenever by law or by court order the conservator is authorized, permitted, required, or directed to invest funds in direct and general obligations of the United States government, obligations unconditionally guaranteed by the United States government, or obligations of the agencies of the United States government enumerated in Code Section 29-3-32, the conservator may invest in and hold such obligations either directly or in the form of securities or other interests in any open-end or closed-end management type investment company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Sections 80a-1, et seq., so long as:
    1. The portfolio of such investment company or investment trust is limited to such obligations and repurchase agreements fully collateralized by such obligations;
    2. Such investment company or investment trust takes delivery of such collateral, either directly or through an authorized custodian; and
    3. Such investment company or investment trust is operated so as to provide a constant net asset value or price per share.
  2. The authority granted in this Code section shall be applicable notwithstanding that a corporate fiduciary or an affiliate of the corporate fiduciary provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services.

History. — Code 1981, § 29-3-33 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-34. Investment decisions must coincide with those of a prudent person; acquiring and retention of assets.

  1. After receiving court approval as required in subsection (b) or (c) of Code Section 29-3-22, in making investments and in acquiring and retaining those investments and managing property of the minor, the conservator shall exercise the judgment and care, under the circumstances then prevailing, that a prudent person acting in a like capacity and familiar with such matters would use to attain the purposes of the account. In making such investment decisions, a conservator may consider the general economic conditions, the anticipated tax consequences of the investments, the anticipated duration of the account, and the needs of the minor.
  2. Within the limitations of the standard provided in subsection (a) of this Code section and with prior approval by the court in accordance with Code Section 29-5-23, a conservator is authorized to acquire and retain every kind of property, including real, personal, or mixed and every kind of investment, specifically including, but not by way of limitation, bonds, debentures and other corporate obligations, and stocks, preferred or common, including the securities of or other interests in any open-end or closed-end management investments company or investment trust registered under the Investment Company Act of 1940, 15 U.S.C. Sections 80a-l, et seq. The propriety of an investment is to be determined by what the conservator knew or should have known at the time of the decision about the inherent nature and expected performance of a particular investment, including probable yield, the attributes of the portfolio, the general economy, and the needs of the minor as they existed at the time of the decision. Any determination of liability for investment performance shall consider not only the performance of a particular investment but also the performance of the minor’s portfolio as a whole. Within the limitations of such standard, a conservator may retain property properly acquired without limitation as to time and without regard to its suitability for original purchase.
  3. A conservator that is a financial institution, trust company, national or state bank, savings bank, or savings and loan association described in Code Section 7-1-242 shall not be precluded from acquiring and retaining securities of or other interests in an investment company or investment trust because the bank or trust company or an affiliate provides services to the investment company or investment trust as investment adviser, custodian, transfer agent, registrar, sponsor, distributor, manager, or otherwise and receives compensation for such services.

History. — Code 1981, § 29-3-34 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-35. Sale of perishable property of minor; sale of stock; disposition of other property; appointment of guardian ad litem; full return to court required; authority of temporary substitute conservator.

  1. A conservator may sell perishable property of the minor, property of the minor that is liable to deteriorate from keeping, or property of the minor that is expensive to keep as early as practicable and in the manner as the court shall determine is in the best interest of the minor, after notice and opportunity for hearing, if any, as the court shall deem practicable under the circumstances.
  2. A conservator may sell stocks or bonds of the minor that are either listed or admitted to unlisted trading privileges upon any stock exchange or quoted regularly in any newspaper having a general circulation in Georgia at a sales price not less than the stock exchange bid price or the published bid price at the time of sale and pay reasonable brokerage commissions not in excess of those customarily charged by stock exchange members.
  3. Except as otherwise provided in subsections (a) and (b) of this Code section, a conservator may petition the court to sell, rent, lease, exchange, or otherwise dispose of property of the minor, whether real or personal or mixed. The petition shall set forth the property involved and the interests therein, the specific purpose of the transaction, the proposed price, the anticipated net proceeds of the sale, all other terms or conditions proposed for the transaction, and that the proposed transaction is in the best interest of the minor.
  4. Upon the filing of the petition, the court shall appoint a guardian ad litem for the minor. The petition and notice shall be served personally on the minor and the guardian ad litem.
  5. If no written objection by a person notified pursuant to subsection (d) of this Code section is filed within 30 days following the mailing of notice or service upon the guardian ad litem, the court shall order the sale summarily in the manner and under the terms petitioned; provided, however, that if real property is to be converted to personal property, the court shall order the conservator to post additional bond to cover the amount of the anticipated net proceeds of the sale prior to the closing of the sale. If an objection is filed, the court shall hear the matter and grant or deny the petition for sale or make such other order as is in the best interest of the minor, which may require the sale to be private or at public auction, including confirmation of the sale by the court or otherwise.
  6. A conservator shall make a full return to the court within 30 days of every sale, specifying the property sold, the purchasers, and the amounts received, together with the terms of the sale.
  7. The recital in the conservator’s deed of a compliance with legal provisions shall be prima-facie evidence of the facts recited.
  8. Where a conservator sells real property under the provisions of this Code section, liens thereon may be divested and transferred to the proceeds of the sale as a condition of the sale.
  9. A temporary substitute conservator is authorized to petition the court for leave to sell or otherwise deal with the property of the estate only if good cause is shown for not waiting until a different type of conservatorship is created or the conservatorship is terminated.

History. — Code 1981, § 29-3-35 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Filing of affidavit claiming property to be sold by executors, administrators, and trustees, § 53-8-70 (Pre-1988 Probate Code).

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).

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 .

29-3-36. Estate plan for minor; appointment of guardian ad litem; considerations prior to property transfer.

  1. After notice to interested parties and other persons as the court may direct, and upon a showing that the minor shall probably remain in need of a conservator throughout the minor’s lifetime and that it is in the best interest of the minor, the court may order the conservator to apply such principal or income of the minor as is not required for the support, care, education, health, and welfare of the minor toward the establishment or continuation of an estate plan for the minor and make transfers of the minor’s personal or real property, outright or in trust, provided that the court finds that a competent, reasonable person in the minor’s circumstances would make such transfers and there is no evidence that the minor, if not in need of a conservator, would not adopt such an estate plan.
  2. Prior to authorizing such transfers, the court shall appoint a guardian ad litem for the minor and shall consider:
    1. The composition and value of the entire estate of the minor, other known sources of support available to the minor, and the income produced thereby;
    2. The probable expenses for the support, care, education, health, or welfare of the minor for the remainder of the minor’s lifetime in the standard of living to which the minor has become accustomed;
    3. The identity of the proposed transferees and, in particular, whether they are natural objects of the minor’s bounty by relationship or prior behavior of the minor;
    4. The purpose and estate planning benefit to be derived by the transfer as well as the possible harm to any interested party; and
    5. Any previous history or predisposition toward making similar transfers by the minor.

History. — Code 1981, § 29-3-36 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

Law reviews. —

For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986).

Article 4 Bonding of Conservators

29-3-40. Bond required; exception; recording of bonds.

  1. A conservator appointed by the court shall give bond with good and sufficient security.
  2. A financial institution, trust company, national or state bank, savings bank, or savings and loan association described in Code Section 7-1-242 that seeks to qualify as a conservator is not required to give bond for the faithful performance of its duties unless its combined capital, surplus, and undivided profits are less than $3 million as reflected in its last statement filed with the Comptroller of the Currency of the United States or the commissioner of banking and finance.
  3. The clerk of the court shall record bonds in books kept for that purpose and shall retain custody of the bonds.

History. — Code 1981, § 29-3-40 , enacted by Ga. L. 2004, p. 161, § 1.

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).

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 .

29-3-41. Requirements of bond; term and value of bond; substantial compliance sufficient.

  1. The bond of a conservator shall be:
    1. Secured by an individual who is a domiciliary of this state or by a licensed commercial surety authorized to transact business in this state;
    2. Payable to the court for the benefit of the minor;
    3. Conditioned upon the faithful discharge of the conservator’s duty, as is required by law; and
    4. Attested by the judge or clerk of the court.
  2. The court may order a conservator who is required to give bond to post bond for a period of time greater than one year, as may be appropriate in the circumstances. A surety on a bond posted pursuant to this subsection shall not be relieved of liability merely because of the expiration of the term of the bond but shall be subject to the provisions of law for the discharge of a surety applicable to other bonds.
  3. The bond shall be in a value equal to double the estimated value of the minor’s estate; provided, however, that the bond shall be in an amount equal to the estimated value of the estate if secured by a licensed commercial surety authorized to transact business in this state. The value of the estate for purposes of the bond shall be determined without regard to the value of any real property or improvements thereon but, upon conversion of the real property into personal property, a bond shall be given based upon the value of the estate, including the value of the personal property into which the real property was converted.
  4. Substantial compliance with these requirements for the bond shall be deemed sufficient; and no bond shall be declared invalid by reason of any variation from these requirements as to payee, amount, or condition, where the manifest intention was to give bond as conservator and a breach of the fiduciary’s duty as such has been proved.

History. — Code 1981, § 29-3-41 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Time limitation on bringing of actions against guardians, § 9-3-27 .

Statute of limitations for prosecution for conversion by guardian of property of ward, § 17-3-2 .

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).

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 .

29-3-42. Reduction of bond.

If the value of the minor’s bonded estate decreases, the court may permit a corresponding reduction in the value of the bond, but this reduction does not affect the liability of the surety for prior waste or misconduct of the conservator.

History. — Code 1981, § 29-3-42 , enacted by Ga. L. 2004, p. 161, § 1.

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 .

29-3-43. Requirement of additional bond; notice in event of sureties deficiencies; revocation of letters of conservatorship.

  1. When it comes to the attention of the court, either by annual return or otherwise:
    1. That additional personal property has accrued to the minor by descent, gift, or otherwise or that for any other reason the bond or security of the conservator fails to comply with the minimum statutory bond amount set forth in Code Section 29-3-40; or
    2. That the bond or security is otherwise insufficient in the judgment of the court,

      the court shall give notice to the conservator to appear and give additional bond or security. Notice shall be mailed by first-class mail to the conservator and to the surety on the conservator’s bond. If the conservator fails to comply with the notice, the court may revoke the letters of conservatorship in accordance with Code Section 29-3-82.

  2. When it comes to the attention of the court that the surety on the conservator’s bond has died, become insolvent, or removed from this state or if from other cause the security becomes insufficient, the court may give notice to the conservator to appear give other and sufficient security. Notice shall be mailed by first-class mail to the conservator and to the surety on the conservator’s bond. If the conservator fails to comply with the notice, the court may revoke the letters of conservatorship in accordance with Code Section 29-3-82.

History. — Code 1981, § 29-3-43 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Application by surety or personal representative to be relieved and requirement that thereupon guardian give other security or be discharged, § 29-2-52 .

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.2d 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. Prine v. Mapp, 80 Ga. 137 , 5 S.E. 66 (1887) (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. Prine v. Mapp, 80 Ga. 137 , 5 S.E. 66 (1887) (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).

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 .

29-3-44. Payment of bond premium.

  1. A conservator who is required to give bond, and who has given as security on such bond one or more licensed commercial sureties, may pay any bond premium from the estate.
  2. When the guardian is required to give bond pursuant to Code Section 29-2-25, the conservator shall, upon the request of the guardian, pay any bond premium from the estate.

History. — Code 1981, § 29-3-44 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 4/HB 70.

The 2019 amendment, effective January 1, 2020, inserted “, upon the request of the guardian,” in the middle of subsection (b).

Cross references. —

Time limitation on bringing of actions against guardians, § 9-3-27 .

Statute of limitations for prosecution for conversion by guardian of property of ward, § 17-3-2 .

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 .

29-3-45. Responsibility of surety in event appointment of conservator void.

If the appointment of a conservator for any cause is declared void, the surety of that conservator shall nevertheless be responsible on the bond for any property received by the conservator.

History. — Code 1981, § 29-3-45 , enacted by Ga. L. 2004, p. 161, § 1.

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) See also Griffin v. Collins, 122 Ga. 102 , 49 S.E. 827 (1905) (decided under former Civil Code 1895, § 2554).

RESEARCH REFERENCES

C.J.S. —

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

29-3-46. Joint and several obligation.

The conservator and any surety shall be held and deemed joint and several obligors and may be subjected jointly and severally to liability in the same action. When a conservator moves beyond the limits of this state, dies and leaves an unrepresented estate, or is in such a position that an attachment may be issued as against a debtor, any party in interest or any person having demands against that conservator in the conservator’s representative capacity may institute an action against any one or more of the sureties on the bond of the conservator in the first instance, without first obtaining a judgment against the conservator in that person’s representative capacity.

History. — Code 1981, § 29-3-46 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-47. Levy upon property authorized; writ of execution authorized.

  1. When a judgment has been obtained against the conservator or the surety on the bond of a conservator, or both, a levy may be made upon any property of any defendant in fi. fa.
  2. The court shall be authorized to enter a judgment and to issue a writ of execution against the conservator and surety on the bond and shall be authorized to grant judgment and execution in favor of the surety against the conservator upon payment of the judgment by the surety.

History. — Code 1981, § 29-3-47 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

C.J.S. —

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

29-3-48. Levy upon surety then conservator.

In all cases of judgments recovered against a conservator or any surety of a conservator, the execution shall first be levied on the property of the surety and no levy shall be made on the property of the conservator until there is a return of nulla bona as to the surety.

History. — Code 1981, § 29-3-48 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

C.J.S. —

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

29-3-49. Petition for release from surety obligation; order of discharge; appointment and liability of new surety; accounting requirement.

  1. The surety on the bond of any conservator or, if the surety is dead, the surety’s personal representative, may at any time petition the court regarding any misconduct of the conservator in the discharge of the conservator’s trust or to show the court its desire for any reason to be relieved as surety. The death of a surety shall be a sufficient ground for the discharge of the surety from future liability.
  2. Upon a petition by the surety or the surety’s personal representative, the court shall cite the conservator to appear and show cause, if any, why the surety should not be discharged. After hearing the parties and the evidence, the court, in its discretion, may issue an order discharging the surety from all future liability and requiring the conservator to give new and sufficient security or be removed as conservator.
  3. If new security is given, the discharged surety shall be discharged only from liability for future misconduct of the conservator from the time the new security is given. The new surety shall be liable for past as well as future misconduct of the conservator.
  4. If new security is not given and the conservator is removed, the discharged surety shall be bound for a true accounting of the conservator with the successor conservator or with the minor if no other conservator is appointed. In all cases where letters of conservatorship are revoked, any surety on the bond shall be liable for all acts of the conservator in relation to the trust up to the time of the settlement with the new conservator or the minor.

History. — Code 1981, § 29-3-49 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Requiring guardian to give other security or be discharged on application of ward’s relative or on court’s own motion, § 29-4-15 .

Law reviews. —

For annual survey article on wills, trusts and administration of estates, see 50 Mercer L. Rev. 381 (1998).

JUDICIAL DECISIONS

Analysis

General Consideration

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under Laws 1810, Cobb’s 1851 Digest, p. 317, Code 1873, § 1817, former Code 1882, § 1817, former Civil Code 1895, § 2533, former Civil Code 1910, § 3052, former Code 1933, § 49-233, and former O.C.G.A. § 29-2-52 are included in the annotations for this Code section.

Only surety or representative can institute proceeding. —

Proceeding under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52 ) could be instituted only by surety, or, if surety was dead, by the surety’s representative. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E.2d 135 (1941) (decided under former Code 1933, § 49-233).

Principal and surety cannot by agreement release surety, even with approval of court. Great Am. Indem. Co. v. Jeffries, 65 Ga. App. 686 , 16 S.E.2d 135 (1941) (decided under former Code 1933, § 49-233).

Guardian must be cited before surety can be discharged. —

Surety on a guardian’s bond can obtain no discharge without a petition and without having an ordinary (now judge of probate court) to cite guardian to appear and show cause against application. DuPont v. Mayo, 56 Ga. 304 (1876) (decided under former Code 1873, § 1817).

Two distinct contingencies whereby surety may seek discharge. —

Under former Civil Code 1910, § 3052 (former O.C.G.A. § 29-2-52 ), surety on guardian’s bond could obtain relief in two distinct contingencies; first, in case of misconduct of guardian in discharge of trust; second, when for any other reason, the surety desires to be relieved. Means v. American Bonding Co., 23 Ga. App. 453 , 98 S.E. 399 (1919) See also National Sur. Co. v. Morris, 111 Ga. 307 , 36 S.E. 690 (1900) (decided under former Civil Code 1910, § 3052).

Preremoval misconduct. —

Former O.C.G.A. § 29-2-52 did not require the court, based on the guardian’s preremoval misconduct, to grant a surety’s petition for relief from its obligations under bonds, and thereby discharge the surety from any liability for the guardian’s misconduct. Osborne Bonding & Sur. Co. v. Glaze, 230 Ga. App. 895 , 497 S.E.2d 612 (1998) (decided under former O.C.G.A. § 29-2-52 ).

Acts or omissions pertaining to mismanagement of estate constitute misconduct. —

Under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52 ) all acts, whether of commission or omission, which pertain to mismanagement of estate by guardian or administrator, constituted misconduct and could authorize discharge of surety. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865 , 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

The words, “any misconduct of his principal [guardian] in discharge of his trust,” are exhaustive of all acts, whether of commission or omission, which pertain to guardian’s mismanagement of estate, or nonperformance of any duties devolving upon him in his office. National Sur. Co. v. Morris, 111 Ga. 307 , 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533); Means v. American Bonding Co., 23 Ga. App. 453 , 98 S.E. 399 (1919) (decided under former Civil Code 1910, § 3052).

Acts of guardian authorized discharge of surety. —

See Means v. American Bonding Co., 23 Ga. App. 453 , 98 S.E. 399 (1919) (decided under former Civil Code 1910, § 3052).

Discharge prevents proceedings against continuing guardian’s acts prior to discharge. —

Outgoing surety cannot by proceedings instituted subsequent to discharge, interfere with guardian who is continued in outgoing surety’s office, in discharge of the surety’s duties, because of acts of mismanagement and failure to comply with requirements of law relative to the surety’s duties which occurred prior to discharge of first surety. Hooks v. Fidelity & Deposit Co., 135 Ga. 396 , 69 S.E. 484 (1910) (decided under former Civil Code 1910, § 3052).

Reasons other than official misconduct for which surety might seek discharge. —

A guardian’s want of personal integrity, lack of business capacity, extravagant or reckless living, indulgence in vicious or immoral habits, criminality, and scores of other things which might be suggested, would certainly afford good reasons for a desire to be relieved as surety. National Sur. Co. v. Morris, 111 Ga. 307 , 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533); Means v. American Bonding Co., 23 Ga. App. 453 , 98 S.E. 399 (1919) (decided under former Civil Code 1910, § 3052).

Surety seeking discharge against continuing guardian is not entitled to accounting. —

Surety is not entitled to seek in a petition for discharge an accounting from guardian who, by providing new security, continues in a trust capacity. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865 , 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

Discharged surety not entitled to require payment of ward’s funds into court by continuing guardian. Hooks v. Fidelity & Deposit Co., 135 Ga. 396 , 69 S.E. 484 (1910) (decided under former Civil Code 1910, § 3052).

Surety need not wait until liable for waste or mismanagement. —

Surety not bound to wait until liability for actual waste or mismanagement arises. The surety may reasonably anticipate same and move for relief at that time. National Sur. Co. v. Morris, 111 Ga. 307 , 36 S.E. 690 (1900) (decided under former Civil Code 1895, § 2533).

Surety need not show actual loss by guardian’s misconduct. —

To state a cause of action for discharge under former Code 1933, § 49-233 (former O.C.G.A. § 29-2-52 ), it was not necessary that surety show actual loss had accrued to estate by reason of official misconduct of the principal, it being sufficient to show that guardian or administrator has refused to comply with the law, thereby raising reasonable apprehension of future loss. Spradley v. St. Paul Fire & Marine Ins. Co., 108 Ga. App. 865 , 134 S.E.2d 850 (1964) (decided under former Code 1933, § 49-233).

Liabilities of Discharged and Second Surety

Effect of discharge on liabilities of new and old sureties. —

Discharge of sureties upon guardian’s bond releases them from all future responsibility. New sureties are bound for all past and future waste. Justices of Inferior Court ex rel. Woods v. Woods, 1 Ga. 84 (1846) (decided under Laws 1810, Cobb’s 1851 Digest, p. 317).

Liability is between second surety and discharged surety. —

Second surety’s liability for guardian’s past defaults is primary as between himself and discharged surety. Tittle v. Bennett, 94 Ga. 405 , 21 S.E. 62 (1894) (decided under former Code 1882, § 1817).

Discharged and new sureties both primarily liable to wards. —

Liability of discharged surety and second surety is not joint, but several, both being primarily liable to wards, and as between themselves, the second surety is primarily liable. Sutton v. Williams, 77 Ga. 570 , 1 S.E. 175 (1887) (decided under former Code 1882, § 1817).

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 .

Article 5 Compensation of Conservators

29-3-50. Amount of compensation conservator owed; compensation to multiple conservators; failure to make annual returns results in forfeiture; renouncing of compensation.

  1. Other than a temporary substitute conservator, a conservator shall be entitled to compensation for services rendered equal to:
    1. Two and one-half percent commission on all sums of money received by the conservator on account of the estate, except on money loaned by and repaid to the conservator, and 2 1/2 percent commission on all sums paid out by the conservator;
    2. An additional commission equal to one-half of 1 percent computed on the market value of the estate as of the last day of the reporting period. This commission shall be proportionately reduced for any reporting period of less than 12 months;
    3. Ten percent commission on the amount of interest made if, during the course of the conservatorship, the conservator shall receive interest on money loaned by the conservator in that capacity and shall include the same on the return to the court so as to become chargeable with the interest as a part of the corpus of the estate;
    4. Reasonable compensation, as determined in the discretion of the court and after such notice, if any, as the court shall direct, for the delivery over of property in kind, not exceeding 3 percent of the appraised value and, in cases where there has been no appraisal, not over 3 percent of the fair value as found by the court, irrespective of whether delivery over in kind is made pursuant to proceedings for that purpose in the court and irrespective of whether the property, except money, is tangible or intangible or personal or real; and
    5. In the discretion of the court, compensation for working land for the benefit of the minor, but not to exceed 10 percent of the annual income of the managed property.
  2. Whenever any portion of the dividends, interest, or rents payable to a conservator is required by law of the United States or other governmental unit to be withheld by the person paying the same for income tax purposes, the amount withheld shall be deemed to have been collected by the conservator.
  3. Where some or all of the estate passes through the hands of several conservators by reason of the death, removal, or resignation of the first qualified conservator or otherwise, the estate shall not be subject to diminution by charges of commission of each successive conservator holding and receiving in the same right but rather commissions for receiving the estate shall be paid to the first conservator who receives the property for the benefit of the estate or that person’s representative, and commissions for paying out shall be paid to the conservator who actually distributes the fund, and no commissions shall be paid for handing over the fund to a successor conservator. If there is more than one conservator serving simultaneously, the division of the compensation allowed them shall be according to the services rendered by each.
  4. A conservator shall not be entitled to any commissions for any sums paid to any conservator of the estate as commissions or other compensation.
  5. Conservators who fail to make annual returns as required by law shall forfeit all commissions for transactions during the year within which no return is made unless the probate court, upon cause shown, shall by special order entered on the record, relieve them from the forfeiture.
  6. A conservator may renounce the right to all or any part of the compensation to which the conservator is entitled under this Code section.

History. — Code 1981, § 29-3-50 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 8/SB 534.

Law reviews. —

For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

29-3-51. Allowance for reasonable expenses.

Conservators shall be allowed reasonable expenses incurred in the administration of the estate, including without limitation, expenses for travel, employing counsel and other agents, and the expenses and premiums incurred in securing a bond. Such reasonable expenses shall be determined after notice, if any, as the court shall direct. The conservator’s commissions are part of the expense of administering the estate and may be charged against the corpus of the estate as well as the income of the estate.

History. — Code 1981, § 29-3-51 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-52. Petition for larger compensation; procedural requirements.

  1. A conservator may petition the court for compensation that is greater than that allowed under Code Section 29-3-50. Service of notice of the petition for extra compensation shall be made to the minor and to a guardian ad litem appointed for the minor. Service shall be made in the manner described in Chapter 9 of this title and shall direct the parties served to file any written objections to the petition for extra compensation with the court within ten days.
  2. After hearing any objection filed by or on behalf of the minor, the court shall allow such extra compensation as the court deems reasonable. The allowance of extra compensation shall be conclusive as to all parties in interest.

History. — Code 1981, § 29-3-52 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-53. Compensation from corporation or business enterprise; effect of compensation; purpose of provisions.

  1. Any conservator who is a domiciliary of this state may receive compensation for services, as specified in this subsection, from a corporation or other business enterprise where the estate of the minor owns an interest in the corporation or other business enterprise, provided that:
    1. The services furnished by the conservator to the corporation or other business enterprise are of a managerial, executive, or business advisory nature;
    2. The compensation received for the services is reasonable; and
    3. The services are performed and the conservator is paid pursuant to a contract executed by the conservator and the corporation or business enterprise, which contract is approved by a majority of those members of the board of directors or other similar governing authority of the corporation or business enterprise who are not officers or employees of the conservator and are not related to the conservator and provided the contract is approved by the court of the county which has jurisdiction over the conservatorship.
  2. Any conservator receiving compensation from a corporation or other business enterprise for services to it as described in subsection (a) of this Code section shall not receive extra compensation in respect to such services as provided in Code Section 29-3-52; provided, however, that nothing in this Code section shall prohibit the receipt by the conservator of extra compensation for services rendered in respect to other assets or matters involving the estate.
  3. Nothing in this Code section shall prohibit the receipt by conservators of normal commissions and compensation for the usual services performed by conservators pursuant to law.
  4. The purpose of this Code section is to enable additional compensation to be paid to a conservator for business management and advisory services to corporations and business enterprises pursuant to contract, without the necessity of petitioning for extra compensation pursuant to Code Section 29-3-52.

History. — Code 1981, § 29-3-53 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-54. Compensation of temporary substitute conservator; reduction of conservator’s compensation.

A temporary substitute conservator may apply to the court for reasonable compensation after notice to interested parties in compliance with Chapter 9 of this title. The court shall award reasonable compensation to a temporary substitute conservator and such compensation shall be the only compensation or commission paid to the temporary substitute conservator for services performed in that capacity. For good cause, including but not limited to services performed and compensation awarded to a temporary substitute conservator, the court may reduce the compensation due the conservator under other provisions of this article.

History. — Code 1981, § 29-3-54 , enacted by Ga. L. 2004, p. 161, § 1.

Article 6 Accounting for Assets

29-3-60. Annual filing of verified return; change of reporting period; production of documents; effect of failure to file return.

  1. Each year, within 60 days of the anniversary date of qualification, every conservator shall file with the court a verified return consisting of a statement of the receipts and expenditures of the conservatorship during the year preceding the anniversary date of qualification, an updated inventory consisting of a statement of the assets and liabilities of the estate as of the anniversary date of qualification, an updated plan for managing, expending, and distributing the minor’s property, a note or memorandum of any other fact necessary to show the true condition of the estate, and a statement of the current amount of the bond. The conservator shall mail a copy of the return by first-class mail to the surety on the conservator’s bond and the minor’s guardian, if any. If the minor has no guardian or if the guardian and the conservator are the same person, the conservator shall mail a copy of the return by first-class mail to the minor.
  2. Upon petition of the conservator or upon the court’s own motion, the court may change the reporting period from the year immediately preceding the anniversary date of qualification to the year immediately preceding a date ordered by the court. In lieu of changing the reporting date, the court is authorized to accept a return for filing even if the return does not cover the appropriate reporting period; however, such acceptance shall not change the reporting period established by either the anniversary date of qualification or a subsequent order of the court, unless the court also enters an order changing the reporting date.
  3. The court shall carefully examine each return of a conservator and, upon petition of any interested person or upon the court’s own motion, may require the conservator to produce the original documents that support the return. Except as otherwise provided in this subsection, if no objection is filed within 30 days of the time the conservator’s return is filed, the court shall record the return within 60 days of its filing. The return shall be kept on file in the court. The recorded return shall be prima-facie evidence of its correctness. If there is an objection to the return or if the court on its own motion determines that the conservator may have wasted the property of the minor or failed in any manner to comply with applicable law, the court shall hold a hearing or take such other action as the court deems appropriate.
  4. The court shall keep a docket of conservators liable to file returns. Upon the failure of any conservator to file any return within the time frame required by law, the court shall cite the conservator to appear and show reason for the delay. A conservator who fails to file an annual return as required by law shall forfeit all commissions and other compensation for the year within which no return is filed unless otherwise ordered by the court. A willful and continued failure to file a return shall be good cause for removal.

History. — Code 1981, § 29-3-60 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Administrator’s duty to file inventory, § 53-7-75 (Pre-1998 Probate Code).

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).

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 .

29-3-61. Interim settlement of accounts; reporting and requirements of report; procedure for objecting.

  1. At any time after the six-month period following qualification, but not more frequently than once every 24 months, a conservator may petition the court for an interim settlement of accounts. The court shall appoint a guardian ad litem for the minor upon the filing of the petition for interim settlement.
  2. The petition for an interim settlement of accounts shall be accompanied by a report which shall set forth all of the information required by law in annual returns and, in addition thereto, shall show:
    1. The period which the report covers;
    2. The name and address of the minor, the name and address of the minor’s guardian, if any, and the name of the surety on the conservator’s bond, with the amount of the bond; and
    3. Such other facts as the court may require.
  3. The court, upon the petition for an interim settlement of accounts being filed, shall issue a citation and shall require any objections to be filed in accordance with Chapter 9 of this title. The minor and the guardian ad litem shall be served personally, and the minor’s guardian, if any, and the surety of the conservator’s bond shall be served by first-class mail.

History. — Code 1981, § 29-3-61 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

29-3-62. Objections to conservator’s interim settlement of accounts; hearing.

Any interested person may file an objection to the conservator’s interim settlement of accounts. Upon receipt of objections or on the court’s own motion, the court shall hold a hearing in which it shall consider all objections, hear evidence, and determine whether the conservator shall be discharged from liability for the period covered by the interim settlement of accounts.

History. — Code 1981, § 29-3-62 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-63. Judgment against conservator and surety.

If the court finds that the conservator is liable to the minor, the court shall enter a judgment against the conservator and any surety in the amount of such liability.

History. — Code 1981, § 29-3-63 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-64. Termination of conservatorship.

  1. The conservatorship of a minor shall terminate either on the date upon which the minor reaches 18 years of age or earlier if the minor becomes emancipated. Proof of emancipation shall be filed with the court; and, where the court deems appropriate, the court may order a hearing on the issue of termination.
  2. Within six months prior to the date the minor reaches 18 years of age, the conservator or any other interested person may file a petition for the appointment of a conservator for the minor when that minor becomes an adult, in accordance with the provisions of Article 2 of Chapter 5 of this title, to take effect on the date the minor reaches 18 years of age.
  3. The death of the minor automatically terminates the conservatorship, but the conservator or the conservator’s personal representative must comply with the provisions in Code Section 29-3-70.
  4. Upon termination of the conservatorship, the conservator shall deliver any money or property to the former minor or, if a conservator has been appointed for the former minor, to that conservator, or, if the minor is deceased, to the minor’s personal representative.

History. — Code 1981, § 29-3-64 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

Article 7 Termination of Conservatorship

29-3-70. Petition for order of dismissal of conservatorship; final return; notice; order of dismissal.

  1. Upon the termination of the conservatorship or upon the resignation of the conservator, the conservator may petition the court for an order dismissing the conservator from office. The petition shall include a final return to the court which covers the period from the last annual return filed by the conservator. The final return shall contain the information required for annual returns and shall otherwise comply with the provisions of Code Section 29-3-60. Notice shall be published one time in the newspaper in which sheriff’s advertisements are published in the county in which the petition is filed and shall state that any objection must be made in writing and shall designate the date on or before which objections must be filed in the court, which date shall not be less then 30 days from the date of publication. The court shall examine any objections filed.
  2. If no objection is filed or if, upon hearing any objection, the court is satisfied that the order dismissing the conservator from office is appropriate, the court shall enter an order dismissing the conservator from office. Such order shall not bar an action against the conservator or the conservator’s surety.

History. — Code 1981, § 29-3-70 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

C.J.S. —

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

29-3-71. Final settlements; settlement period; examination of returns and accounts by court; return of property to minor.

  1. A minor who has reached the age of majority, the personal representative of a deceased minor, a successor conservator, or any interested person may petition the court for an order requiring a conservator or that conservator’s personal representative to appear and submit to a final settlement of the conservator’s accounts. Alternatively, the court on its own motion may issue such an order. The settlement period shall be the period of time from the commencement of the conservatorship or the end of the period covered by the last interim settlement of accounts. If the conservator fails or refuses to appear as cited, the court may proceed without the appearance of the conservator. If the conservator has been required to give bond, the surety on the bond shall be bound by the settlement if the surety is given notice by first-class mail of the settlement proceeding.
  2. A conservator, a former conservator, the conservator of a conservator, or the personal representative of a deceased conservator shall be allowed to cite the minor, the minor’s personal representative, or a successor conservator to appear and be present at a final settlement of the conservator’s accounts and discharge from liability in the manner provided for in subsection (a) of this Code section. The settlement period shall be the period of time from the commencement of the conservatorship or the end of the period covered by the last interim settlement of accounts. Notice by first-class mail of the settlement proceeding must be given to the surety on the conservator’s bond and to the minor’s guardian, if any. If the minor has not reached 18 years of age or if the conservator is the minor’s personal representative, the court shall appoint a guardian ad litem for the minor who shall be served personally.
  3. Upon the return of a notice referred to in subsections (a) and (b) of this Code section, the court shall proceed to examine all returns and accounts of the conservator during the settlement period and to hear any objection to the settlement and discharge.
  4. The court shall order any property in the hands of the conservator to be delivered to the minor, the minor’s personal representative, or to the successor conservator and shall issue a judgment, writ of fieri facias, and execution thereon for any sums found to be due from the conservator. If the court is satisfied that the conservator has faithfully and honestly discharged the office, an order shall be entered releasing and discharging the conservator from all liability.
  5. When a minor ward for whom the county administrator or county guardian has been previously appointed as conservator dies intestate, the conservator shall proceed to distribute the minor ward’s estate in the same manner as if the conservator had been appointed administrator of the estate. The sureties on the conservator’s bond shall be responsible for the conservator’s faithful administration and distribution of the estate.

History. — Code 1981, § 29-3-71 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2006, p. 805, § 9/SB 534.

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).

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.

Article 8 Successor Conservators

29-3-80. Required showing for resignation of conservator; name of suitable alternate required; notice; order appointing successor conservator.

  1. A conservator or the duly authorized guardian, conservator, or attorney in fact of a conservator acting on behalf of the conservator may resign upon petition to the court showing to the satisfaction of the court that:
    1. The conservator is unable to continue serving due to age, illness, infirmity, or other good cause;
    2. Greater burdens have devolved upon the office of conservator than those that were originally contemplated or should have been contemplated when the conservator was qualified and the additional burdens work a hardship upon the conservator;
    3. Disagreement exists between the minor and the conservator or between the guardian and the conservator in respect to the conservator’s management of the minor’s property, which disagreement and conflict appear to be detrimental to the minor;
    4. The resignation of the conservator will result in or permit substantial financial benefit to the minor; or
    5. The resignation would not be disadvantageous to the minor.
  2. The petition for resignation shall include the name of a suitable person who is willing to accept the conservatorship.
  3. Personal service of the petition for resignation shall be made upon the minor and a guardian ad litem appointed by the court for the minor. Service shall be made by first-class mail to the guardian of the minor, if any, the surety on the conservator’s bond, and to the following relatives of the minor who are persons other than the resigning conservator or the proposed successor conservator:
    1. Any parent of the minor whose parental rights have not been terminated;
    2. If there is no parent of the minor whose parental rights have not been terminated, the adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    3. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    4. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  4. If, after such hearing as the court deems appropriate, the court is satisfied that the petition for the resignation of the conservator and the appointment of the successor conservator should be granted, the court shall enter an order appointing the successor conservator in accordance with the provisions of Code Section 29-3-91 and shall accept the conservator’s resignation, subject to the resigning conservator turning over to the successor conservator all property of the minor held by the conservator.

History. — Code 1981, § 29-3-80 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2004, “or” was added following the semicolon at the end of paragraph (c)(3) and “Code Section 53-2-1” was substituted for “53-2-1” in paragraph (c)(4).

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.

29-3-81. Individuals entitled to notice; appointment of successor conservator; turning over of property.

  1. In the event of the death of a conservator and upon the petition of an interested person or upon the court’s own motion, the court shall appoint a successor conservator. The court shall notify the minor and a guardian ad litem appointed for the minor by personal service. Notice shall be given by first-class mail to the guardian of the minor, if any, the surety on the conservator’s bond, the personal representative of the deceased conservator, if any, and, in the following order of preference, to the following relatives of the minor who are persons other than the proposed successor conservator:
    1. Any parent of the minor whose parental rights have not been terminated;
    2. If there is no parent of the minor whose parental rights have not been terminated, the adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    3. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    4. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  2. After such hearing as the court deems appropriate, the court shall enter an order appointing a successor conservator in accordance with the provisions of Code Section 29-3-91 and require the personal representative of the deceased conservator to turn over to the successor conservator all property of the minor held by the conservator.

History. — Code 1981, § 29-3-81 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142.

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 .

29-3-82. Suspension of conservatorship or imposition of sanctions; power of court; liability of conservator.

  1. Upon the petition of any interested person or whenever it appears to the court that good cause may exist to revoke or suspend the letters of conservatorship or to impose sanctions, the court shall cite the conservator to answer the charge. The court shall investigate the allegations and may require such accounting as the court deems appropriate. The court may appoint a temporary substitute conservator to take possession of and to administer the minor’s property during the investigation.
  2. Upon investigation the court may in its discretion:
    1. Revoke or suspend the letters of conservatorship;
    2. Require additional security;
    3. Require the conservator to appear and submit to a settlement of accounts following the procedure as set forth in Code Section 29-3-71, whether or not the conservator has first resigned or been removed and whether or not a successor conservator has been appointed;
    4. Reduce or deny compensation to the conservator or impose such other sanction or sanctions as the court deems appropriate; and
    5. Issue such other orders which the court deems appropriate under the circumstances of the case.
  3. The revocation or suspension of letters of conservatorship shall not abate any action pending for or against the conservator. The successor conservator shall be made a party to the action in the manner provided in Code Section 9-11-25.

History. — Code 1981, § 29-3-82 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-83. Cause of action for breach of conservator’s duties; remedies available to minor.

  1. If a conservator commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a minor or an interested person on behalf of the minor shall have a cause of action as appropriate:
    1. To recover damages;
    2. To compel performance of the conservator’s duties;
    3. To enjoin the commission of a breach of fiduciary duty; or
    4. To compel the redress of a breach of fiduciary duty by payment of money or otherwise.
  2. When the minor’s assets are misapplied and can be traced into the hands of persons who have notice of the misapplication, a trust shall attach to the assets.
  3. The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.

History. — Code 1981, § 29-3-83 , enacted by Ga. L. 2004, p. 161, § 1.

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).

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 Ga. Op. Att'y Gen. 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 .

29-3-84. Statute of limitations.

All actions against a conservator, except on a conservator’s bond, shall be brought within six years of the termination of the conservatorship of the minor, except as provided in Code Section 9-3-90.

History. — Code 1981, § 29-3-84 , enacted by Ga. L. 2004, p. 161, § 1.

Article 9 Temporary Substitute Conservators

29-3-90. Appointment of temporary substitute conservator; length of appointment; powers; notice; removal.

  1. Upon its own motion or on the petition of any interested party, including the minor, the court may appoint a temporary substitute conservator for a minor if it appears to the court that the best interest of the minor requires immediate action.
  2. The temporary substitute conservator shall be appointed for a specified period not to exceed 120 days.
  3. The court shall appoint as temporary substitute conservator the county guardian or some other appropriate person who shall serve the best interest of the minor.
  4. Except as otherwise ordered by the court, a temporary substitute conservator has the powers set forth in the order of appointment. The authority of the previously appointed conservator is suspended for as long as the temporary substitute conservator has authority.
  5. Notice of the appointment of a temporary substitute conservator shall be served personally on the minor. Notice of the appointment shall be served personally on the previously appointed conservator at the last address provided by that conservator to the court. Notice of the appointment shall be mailed by first-class mail to the surety of the previously appointed conservator and to the minor’s guardian, if any.
  6. The court may remove the temporary substitute conservator at any time. A temporary substitute conservator shall make any report and shall give any bond the court deems appropriate. In all other respects, the provisions of this chapter apply to the temporary substitute conservator.

History. — Code 1981, § 29-3-90 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-91. Appointment of successor conservator; notice; hearing and bond requirements.

  1. The court shall appoint a successor conservator upon the resignation, death, or revocation of the letters of the conservator if the appointment of a successor conservator is in the best interest of the minor. The court shall select the successor conservator in the manner provided in Code Section 29-3-7.
  2. In the event of the resignation or death of the conservator, notice of the proceeding for appointment of a successor conservator shall be given as provided in Code Sections 29-3-80 and 29-3-81. In all other cases, notice of the proceeding for appointment of a successor conservator shall be served personally on the minor and a guardian ad litem appointed for the minor. Notice shall be given by first-class mail to the guardian of the minor, if any, and to the following relatives of the minor, in the following order of preference, who are persons other than the proposed successor conservator:
    1. Any parent of the minor whose parental rights have not been terminated;
    2. If there is no parent of the minor whose parental rights have not been terminated, the adult siblings of the minor; provided, however, that not more than three adult siblings need be served;
    3. If there is no adult sibling of the minor, the grandparents of the minor; provided, however, that not more than three grandparents need be served; or
    4. If there is no grandparent of the minor, any three of the nearest adult relatives of the minor determined according to Code Section 53-2-1.
  3. After any hearing the court deems appropriate, the court shall enter an order appointing the successor conservator and require that bond be posted in the amount set forth in Code Section 29-3-40.

History. — Code 1981, § 29-3-91 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142.

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.

29-3-92. Delivery of property; annual return; liability of surety.

Upon the appointment of a successor conservator, the predecessor conservator or the personal representative of a deceased predecessor conservator shall deliver to the successor conservator all property of the minor held by the conservator and shall submit a final return covering the period since the conservator’s last annual return. The surety of the predecessor conservator shall be liable for all acts of the conservator in relation to the minor’s property up to the time of the receipt of all of the minor’s property by the successor conservator.

History. — Code 1981, § 29-3-92 , enacted by Ga. L. 2004, p. 161, § 1.

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.

Article 10 Foreign Conservatorships

PART 1 General Provisions

29-3-100. Petition for removal to jurisdiction where minor resides; appointment of guardian ad litem; bond; authority; liability of surety; retention of jurisdiction by initial court.

  1. A conservator may petition to remove the conservatorship to the jurisdiction of the court of the county in this state in which the minor resides.
  2. Upon the filing of a petition to remove the conservatorship to another county in this state, the court shall appoint a guardian ad litem for the minor. The court of the county in which the conservator was appointed shall grant the petition for removal only if the court determines that the removal is in the best interest of the minor.
  3. Before the removal of the conservatorship to another county in this state, the conservator must give bond and good security to the court of such county as if the conservator had been first appointed by that court and a certificate to this effect shall be filed in the court in which the conservator was appointed. The conservator shall file with the court of the county to which the conservatorship is to be removed certified copies of all the records pertaining to the conservatorship.
  4. Following removal of a conservatorship to another county in this state, the court to which the conservatorship is removed shall have the same jurisdiction over the conservator as if the conservator had been first appointed in that county, and every case growing out of or affecting the conservatorship shall be heard and tried only in the county to which the conservatorship has been removed.
  5. The sureties on the conservator’s first bond shall be liable only for misconduct of the conservator up until the giving of new bond and security. The sureties on the new bond shall be liable for both past and future misconduct of the conservator.
  6. The court in which an action or proceeding is pending or which has issued an order for a settlement of accounts, removal, or sanction of a conservator shall retain jurisdiction of such matters even though the conservatorship has been removed to another county.

History. — Code 1981, § 29-3-100 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

ALR. —

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

PART 2 Procedure

29-3-105. “Conservatorship” defined; petition for transfer of jurisdiction; requirements of petition.

  1. For purposes of this part and Part 3 of this article, the term “conservatorship” refers to a legal relationship in which a person is given responsibility by a court of competent jurisdiction for the care of the property of a minor, thereby becoming a conservator.
  2. A conservator who has been appointed by a foreign court of competent jurisdiction may petition to have the conservatorship transferred to and accepted in this state by filing a petition for receipt and acceptance of the foreign conservatorship in the court of the county in this state where the minor resides or may reside.
  3. The petition shall include the following:
    1. An authenticated copy of the foreign conservatorship order, including:
      1. All attachments describing the duties and powers of the conservator; and
      2. All amendments or modifications to the foreign conservatorship order entered subsequent to the original order, including any order to transfer the conservatorship;
    2. The address of the foreign court which issued the conservatorship order;
    3. A listing of any other conservatorship petitions that are pending in any jurisdiction and the names and addresses of the courts where the petitions have been filed;
    4. The petitioner’s name, address, and county of domicile;
    5. The name, age, and current address of the minor;
    6. The names and current addresses of the adult siblings of the minor, if any;
    7. The name and address of the person responsible for the care and custody of the minor, if other than the petitioner, and of any other conservator currently serving;
    8. The name and address of any currently acting legal representative, other than the petitioner, including any legal counsel, guardian ad litem, or court visitor appointed by the foreign court for the minor;
    9. The name and address of the minor’s guardian, if any;
    10. The name and address of the surety on the conservator’s bond;
    11. The reason the transfer is in the minor’s best interest; and
    12. To the extent known to the petitioner, a statement of the location and estimated value of the minor’s property and the source and amount of any anticipated income or receipts.
  4. The petition may be combined with other petitions related to the conservatorship, including a petition to modify the terms of the conservatorship.

History. — Code 1981, § 29-3-105 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-106. Notice and other procedural requirements.

  1. Notice and a copy of the petition for receipt and acceptance of a foreign conservatorship shall be served personally on the minor. The notice shall:
    1. State that the minor has a right to a hearing on the petition;
    2. Inform the minor of the procedure to exercise the minor’s right to a hearing; and
    3. State that the minor has the right to independent legal counsel and that the court shall appoint legal counsel for the minor unless the minor has retained counsel or legal counsel has been appointed by the foreign court to represent the minor in the transfer of the conservatorship.
  2. Notice and a copy of the petition for receipt and acceptance of a foreign conservatorship shall be provided to the court from which the conservatorship is to be transferred. Notice to the foreign court shall include a request that the foreign court:
    1. Certify whether:
      1. The foreign court has any record that the conservator has engaged in malfeasance, misfeasance, or nonfeasance during the conservator’s appointment;
      2. Periodic reports have been filed in a satisfactory manner; and
      3. All bond or other security requirements imposed under the conservatorship have been performed;
    2. Forward copies of all documents filed with the foreign court relating to the conservatorship, including but not limited to:
      1. The initial petition for conservatorship and other filings relevant to the appointment of the conservator;
      2. Reports and recommendations of guardians ad litem, court visitors, or other individuals appointed by the foreign court to evaluate the appropriateness of the conservatorship;
      3. Reports of physical and mental health practitioners describing the condition of the minor;
      4. Periodic status reports on the condition of the minor and the minor’s assets; and
      5. The order to transfer the conservatorship, if any.
  3. Notice and a copy of the petition for receipt and acceptance of a foreign conservatorship shall be mailed to all other persons named in the petition by first-class mail. The notice shall inform these persons of their right to object to the receipt and acceptance of the conservatorship by this state.
  4. The minor shall have 30 days from the date of service of the petition for receipt and acceptance of the foreign conservator to request a hearing on the petition. All other persons to whom notice is given under this Code section shall have 30 days from the mailing of the notice to request a hearing on the petition.
  5. The court may waive the notice requirements of subsections (a) through (c) of this Code section if:
    1. The conservator has filed a petition in the foreign court for transfer and release of the conservatorship to this state;
    2. Notice was given to the minor and all interested persons in conjunction with the petition for transfer and release of the conservatorship;
    3. The petitioner provides the court with an authenticated copy of the petition for transfer and release of the conservatorship filed with the foreign court and proof that service was made on the minor not more than 90 days from the date the petition for receipt and acceptance of the conservatorship is filed in the court; and
    4. The minor is represented by legal counsel with respect to the petition in the foreign court.

History. — Code 1981, § 29-3-106 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-107. Hearing.

  1. Upon the court’s own motion or upon timely motion by the minor or by any interested person, the court shall hold a hearing to consider the petition for receipt and acceptance of the foreign conservator.
  2. If any interested person challenges the validity of the foreign conservator or the authority of the foreign court to appoint the conservator, the court may stay this proceeding while the petitioner is afforded the opportunity to have the foreign court hear the challenge and determine its merits.

History. — Code 1981, § 29-3-107 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-108. Required findings prior to granting foreign conservatorship; inventory; applicable law; orderly transfer.

  1. The court may grant a petition for receipt and acceptance of a foreign conservatorship provided the court finds that:
    1. The conservator is presently in good standing with the foreign court; and
    2. The transfer of the conservatorship from the foreign jurisdiction is in the best interest of the minor.
  2. The court may require the conservator to file an inventory of the minor’s property at the time of the transfer from the foreign jurisdiction.
  3. Subject to subsection (d) of this Code section, at all times following the entry of the order accepting the guardianship, the laws of the State of Georgia shall apply to the conservatorship.
  4. In order to coordinate efforts with the foreign court to facilitate the orderly transfer of the conservatorship, the court is authorized to:
    1. Delay the effective date of the receipt and acceptance for a reasonable period of time;
    2. Make the receipt and acceptance contingent upon the release of the conservatorship or the termination of the conservatorship and the discharge of the conservator in the foreign jurisdiction;
    3. Recognize concurrent jurisdiction over the conservatorship for a reasonable period of time to permit the foreign court to release the conservatorship or to terminate the conservatorship and discharge the conservator in the foreign jurisdiction; or
    4. Make other arrangements the court deems necessary to effectuate the receipt and acceptance of the conservatorship.
  5. The denial of a petition for receipt and acceptance of the foreign conservatorship does not affect the right of a conservator appointed by a foreign court of competent jurisdiction to petition for conservatorship under Code Section 29-3-8.

History. — Code 1981, § 29-3-108 , enacted by Ga. L. 2004, p. 161, § 1.

PART 3 Jurisdiction

29-3-110. Transfer of jurisdiction in event minor has permanently moved; determining minor’s residential status; filings.

  1. A conservator may petition the Georgia court which has jurisdiction over the conservatorship to transfer the conservatorship to a foreign court of competent jurisdiction if the minor has moved permanently to the foreign jurisdiction.
  2. The minor may be presumed to have moved permanently to the foreign jurisdiction if:
    1. The minor has resided in the foreign jurisdiction for more than 12 consecutive months;
    2. The conservator notifies the court that the minor will move or has moved permanently to the foreign jurisdiction; or
    3. A foreign court of competent jurisdiction notifies the court of the filing of a petition for conservatorship for the minor in the foreign jurisdiction.
  3. To facilitate the transfer of conservatorship the court may order the conservator to file a petition for receipt and acceptance of the conservatorship in the foreign jurisdiction.
  4. If the foreign jurisdiction does not have a procedure for receiving and accepting a foreign conservatorship, the court may order the conservator to file a petition for conservatorship in the foreign jurisdiction.

History. — Code 1981, § 29-3-110 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-111. Requirements of petition to transfer conservatorship.

The petition to transfer a conservatorship to a foreign jurisdiction shall include the following:

  1. The name and address of the foreign court to which the conservatorship shall be transferred and an authenticated copy of the petition for receipt and acceptance of a foreign conservatorship if previously filed in the foreign court;
  2. A listing of any other conservatorship petitions that are pending in any jurisdiction and the names and addresses of the courts where the petitions have been filed;
  3. The petitioner’s name, address, and county of domicile;
  4. The name, age, and current address of the minor and the new or proposed address of the minor;
  5. The names and current addresses of the adult siblings of the minor, if any;
  6. The name and address of the person responsible for the care and custody of the minor, if other than the petitioner, and of any other conservator currently serving;
  7. The name and address of the minor’s guardian, if any;
  8. The name and address of the surety on the conservator’s bond;
  9. The name and address of any legal representative, other than the petitioner, including any legal counsel, guardian ad litem, or court visitor appointed by the foreign court for the minor;
  10. The reason for moving the minor; and
  11. The reason the transfer of the conservatorship is in the minor’s best interest.

History. — Code 1981, § 29-3-111 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-112. Notice.

  1. Notice and a copy of the petition to transfer a conservatorship to a foreign jurisdiction shall be served personally on the minor not less than ten days prior to the date set for the hearing. The notice shall state:
    1. The date that the hearing shall be held; and
    2. That the minor has the right to independent legal counsel and that the court shall appoint legal counsel for the minor unless the minor has retained counsel or legal counsel has been appointed by the foreign court to represent the minor in the receipt and acceptance of the guardianship.
  2. Notice and a copy of the petition to transfer the conservatorship shall be provided to the foreign court to which the conservatorship is to be transferred.
  3. Notice and a copy of the petition to transfer the conservatorship shall be mailed to all other persons named in the petition. The notice shall inform these persons of the date of the hearing and of their right to file objections to the transfer of the conservatorship by this state.

History. — Code 1981, § 29-3-112 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-113. Hearing.

Upon the court’s own motion or upon timely motion by the minor or by any interested person, the court shall hold a hearing to consider the petition to transfer the conservatorship.

History. — Code 1981, § 29-3-113 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

29-3-114. Required findings prior to granting petition to transfer; orderly and coordinated transfer of conservatorship.

  1. The court may grant a petition to transfer a conservatorship to a foreign court of competent jurisdiction if the court finds that:
    1. The conservator is presently in good standing with the court; and
    2. The transfer of the conservatorship to the foreign jurisdiction is in the best interest of the minor.
  2. In order to coordinate efforts with the foreign court to facilitate the orderly transfer of the conservatorship, the court is authorized to:
    1. Notify the foreign court of any significant problems that may have occurred, including whether periodic reports and accountings have been filed in a satisfactory manner and whether all bond or other security requirements imposed under the conservatorship have been performed;
    2. Forward copies of all documents filed with the court relating to the conservatorship, including but not limited to:
      1. The initial petition for conservatorship and other filings relevant to the appointment of the conservator;
      2. Reports and recommendations of guardians ad litem, court visitors, or other individuals appointed by the court to evaluate the appropriateness of the conservatorship;
      3. Reports of physical or mental health practitioners describing the condition of the minor; and
      4. Periodic status reports on the condition of the minor and the minor’s assets; and
    3. Require the conservator to file an inventory of the minor’s property at the time of the transfer to the foreign jurisdiction.
  3. As necessary to coordinate the transfer of the conservatorship the court is authorized to:
    1. Delay the effective date of the transfer for a reasonable period of time;
    2. Make the transfer contingent upon the acceptance of the conservatorship or appointment of the conservator in the foreign jurisdiction;
    3. Recognize concurrent jurisdiction over the conservatorship for a reasonable period of time to permit the foreign court to accept the conservatorship or appoint the conservator in the foreign jurisdiction; or
    4. Make other arrangements that in the sound discretion of the court are necessary to transfer the conservatorship.

History. — Code 1981, § 29-3-114 , enacted by Ga. L. 2004, p. 161, § 1.

PART 4 Foreign Conservator

29-3-115. “Foreign conservator” defined; sale of minor’s property.

  1. For purposes of this part, a “foreign conservator” is a conservator or other person who has been given responsibility by a court of competent jurisdiction in another state or territory governed by the Constitution of the United States for the care of the property of a minor and whose conservatorship has not been transferred to and accepted in this state pursuant to the provisions of Part 2 of this article.
  2. Any foreign conservator of a minor who resides in any other state and who is authorized to sell and convey property of the minor may sell property of the minor which is in this state, under the rules and regulations prescribed for the sale of real estate by conservators of this state, provided that the foreign conservator must file and have recorded in the court or other proper court, at the time of petitioning for sale, an authenticated copy of the letters of appointment and must also file with the court or other proper authority bond with good and sufficient security, in double the value of the property to be sold, for the faithful execution of the conservatorship, as provided by law.

History. — Code 1981, § 29-3-115 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

C.J.S. —

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

29-3-116. Right of foreign conservator to bring action.

A foreign conservator may institute an action in any court in this state to enforce any right or to recover any property belonging to the minor or accruing to the foreign conservator in his or her capacity as conservator.

History. — Code 1981, § 29-3-116 , enacted by Ga. L. 2004, p. 161, § 1.

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).

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.

29-3-117. Filing of letters of conservatorship.

Pending an action brought by a foreign conservator pursuant to Code Section 29-3-116, an authenticated copy of the letters of conservatorship shall be filed with the clerk of the court to become a part of the record if the case is pending in a court of record, or filed with the papers if the action is a summary proceeding.

History. — Code 1981, § 29-3-117 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-118. Submission of foreign conservator to jurisdiction.

A foreign conservator submits personally to the jurisdiction of the courts of this state in any proceeding relating to the conservatorship by:

  1. Receiving payment of money or taking delivery of personal property in this state belonging to the minor; or
  2. Doing any act as a conservator in this state that would have given this state jurisdiction over the conservator as an individual.

History. — Code 1981, § 29-3-118 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-119. Rights of interested parties prior to sale of minor’s assets.

Any resident of this state who is interested as a creditor, heir, or will beneficiary of a minor whom a foreign conservator represents may apply to the proper court to compel the foreign conservator to protect his or her interest according to equity and good conscience before selling the minor’s assets or removing the minor’s assets beyond the limits of this state.

History. — Code 1981, § 29-3-119 , enacted by Ga. L. 2004, p. 161, § 1.

29-3-120. Payment of funds or return of property to foreign conservator on minor’s behalf.

  1. A person who is indebted to or has possession of tangible or intangible property of a minor may pay the debt or deliver the property to a foreign conservator of the minor. Payment of the debt or delivery of the property may be made upon proof that the foreign conservator has been appointed and is entitled to the debt payment or to receive delivery of the property.
  2. Payment of the debt or delivery of the property in response to the demand discharges the debtor or possessor, unless the debtor or possessor has knowledge of proceedings for the appointment of a guardian, conservator, or other protective proceeding in this state.

History. — Code 1981, § 29-3-120 , enacted by Ga. L. 2004, p. 161, § 1.

CHAPTER 4 Guardians of Adults

Cross references. —

Protective services for abused, neglected, or exploited disabled adults, § 30-5-1 et seq.

Claim by guardian or trustee or mental incompetent or minor, § 34-9-85 .

Appointment of guardian for incompetent adult for purposes of administering workers’ compensation benefits to which such incompetent adult is entitled, § 34-9-226 .

Appointment of representatives and guardians ad litem for persons undergoing treatment for mental illness, mental retardation, alcoholism, §§ 37-3-147 , 37-4-107 , 37-7-147 .

Rights and privileges of patients and their representatives, T. 37, C. 3, Art. 6.

Editor’s notes. —

Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides, in part, that: “all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

Law reviews. —

For article, “The Georgia Law of Insanity,” see 3 Ga. B. J. 28 (1941).

For article, “The Olmstead Decision: The Road to Dignity and Freedom,” see 26 Ga. St. U.L. Rev. 651 (2010).

For article, “Olmstead’s Promise and Cohousing’s Potential,” see 26 Ga. St. U.L. Rev. 663 (2010).

For article, “From the Inside Out: Personal Perspectives of Six Georgians on Their Institutional Experiences,” see 26 Ga. St. U.L. Rev. 741 (2010).

For article, “The Constitutional Right to Community Services,” see 26 Ga. St. U.L. Rev. 763 (2010).

For article, “Reconsidering Makin v. Hawaii: The Right of Medicaid Beneficiaries to Home-Based Services as an Alternative to Institutionalization,” see 26 Ga. St. U.L. Rev. 803 (2010).

For article, “The Potential and Risks of Relying on Title II’s Integration Mandate to Close Segregated Institutions,” see 26 Ga. St. U.L. Rev. 855 (2010).

For article, “Beyond Residential Segregation: The Application of Olmstead to Segregated Employment Settings,” see 26 Ga. St. U.L. Rev. 875 (2010).

For article, “From Almshouses to Nursing Homes and Community Care: Lessons from Medicaid’s History,” see 26 Ga. St. U.L. Rev. 937 (2010).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

For note on 1995 amendments of Code sections in this chapter, see 12 Ga. St. U.L. Rev. 216 (1995).

For note, “Deinstitutionalization: Georgia’s Progress in Developing and Implementing an ‘Effectively Working Plan’ as Required by Olmstead v. L.C. ex rel,” see 25 Ga. St. U.L. Rev. 699 (2009).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 49-6, as it read prior to revision by Ga. L. 1980, p. 1661, and former T. 29, Ch. 5 are included in the annotations for this Code section.

Joint tenancy not terminated by tenant’s incapacity. —

Joint tenancies in bank and stock investment accounts and in real property did not terminate as a matter of law when one of the joint tenants was declared incapacitated and a guardian was appointed for that person and for the property. A guardian, unlike a trustee, has no beneficial title in the ward’s estate, but is merely a custodian or manager. Moore v. Self, 222 Ga. App. 71 , 473 S.E.2d 507 (1996) (decided under former O.C.G.A. Ch. 5, T. 29).

Former Chapters 49-6 and 88-5 of the 1933 Code (former O.C.G.A. Ch. 5, T. 29 and Ch. 3, T. 37) were meant to be read together for procedural purposes. Kiker v. Kiker, 126 Ga. App. 39 , 189 S.E.2d 880 (1972) (decided under former Code 1933, Ch. 49-6).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Trials. —

138 Am. Jur. Trials, Guardianships, §§ 2, 5, 23, 26 et seq., 36 et seq., 42 et seq., 59, 60.

ALR. —

Showing as to mental condition which will entitle one restrained on ground of insanity to release, 19 A.L.R. 715 .

Constitutionality of statute making physical disability ground for appointment of guardian of person or property, 30 A.L.R. 1381 .

Liability of insane person for tort, 51 A.L.R. 833 ; 89 A.L.R. 476 .

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

Liability of incompetent’s estate for care and maintenance furnished by public institution or hospital before incompetent’s acquisition of any estate or property, 33 A.L.R.2d 1257.

Power of guardian, committee, or trustee of mental incompetent, after latter’s death, to pay debts and obligations, 60 A.L.R.2d 963.

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

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.

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

Article 1 General Provisions

29-4-1. Prerequisite findings prior to appointment of guardian for adult; extent of guardianship.

  1. The court may appoint a guardian for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.
  2. No guardian, other than a guardian ad litem or a guardian appointed in an emergency under paragraph (1) of subsection (a) of Code Section 29-11-13, shall be appointed for an adult except pursuant to the procedures of this chapter.
  3. No guardian shall be appointed for an adult unless the appointment is in the best interest of the adult.
  4. No guardian shall be appointed for an adult within two years after the denial or dismissal on the merits of a petition for the appointment of a guardian for that adult unless the petitioner shows a significant change in the condition or circumstances of the adult.
    1. No adult shall be presumed to be in need of a guardian unless:
      1. He or she has been adjudicated to be in need of a guardian pursuant to this chapter; or
      2. The court has recognized another state’s determination of incapacity and the appointment of a guardian as provided in subsection (g) of Code Section 29-11-21.
    2. An adult shall not be presumed to be in need of a guardian solely because of a finding of criminal insanity or incompetence to stand trial or a finding of a need for treatment or services pursuant to:
      1. Code Section 37-1-1;
      2. Code Sections 37-3-1 through 37-3-6;
      3. Articles 2 through 6 of Chapter 3 of Title 37;
      4. Code Sections 37-4-1 through 37-4-3 and 37-4-5 through 37-4-8;
      5. Articles 2 through 5 of Chapter 4 of Title 37;
      6. Code Section 37-5-3;
      7. Code Sections 37-7-1, 37-7-2, and 37-7-4 through 37-7-7; and
      8. Articles 2 through 6 of Chapter 7 of Title 37.
  5. All guardianships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the guardianship are not available or appropriate.

History. — Code 1981, § 29-4-1 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 5/HB 70.

The 2019 amendment, effective January 1, 2020, inserted “or a guardian appointed in an emergency under paragraph (1) of subsection (a) of Code Section 29-11-13” in the middle of subsection (b) and substituted the present provisions of paragraph (e)(1) for the former provisions, which read: “No adult shall be presumed to be in need of a guardian unless adjudicated to be in need of a guardian pursuant to this chapter.”

Cross references. —

Appointment of guardian ad litem for incompetent person not otherwise represented in an action, § 9-11-17 .

Domicile of persons of full age placed under power of guardian, § 19-2-5 .

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

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), No. R02-50780-PWB, No. R02-50780-PWB, No. 08-4069, 2009 Bankr. LEXIS 801 (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).

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 Ga. Op. Att'y Gen. 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.

Am. Jur. Pleading and Practice Forms. —

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

Am. Jur. Trials. —

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.

29-4-2. Qualifications of guardians selected for adults.

  1. Only an individual may serve as guardian of an adult, except in the event a public guardian or the Department of Human Services is appointed pursuant to subsection (b.1) of Code Section 29-4-3.
  2. No individual may be appointed as guardian of an adult who:
    1. Is a minor, a ward, or a protected person;
    2. Has a conflict of interest with the adult unless the court determines that the conflict of interest is insubstantial or that the appointment would be in the adult’s best interest; or
    3. Is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the adult is receiving care, unless related to the adult by blood, marriage, or adoption.
  3. No entity may be appointed as guardian of an adult which:
    1. Has a conflict of interest with the adult unless the court determines that the conflict of interest is insubstantial or that the appointment would be in the adult’s best interest; or
    2. Is a long-term care or other caregiving institution or facility at which the adult is receiving care.

History. — Code 1981, § 29-4-2 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 509, § 2/HB 394; Ga. L. 2009, p. 453, § 2-2/HB 228.

Editor’s notes. —

Ga. L. 2005, p. 509, § 9/HB 394, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2005, and all appointments of guardians of the person made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

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.

29-4-3. (See Editor’s notes.) Order of preference in selection of guardians; written request nominating guardian; requirements of writing.

  1. The court shall appoint as guardian that individual who will best serve the interest of the adult, considering the order of preferences set forth in this Code section. The court may disregard an individual who has preference and appoint an individual who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.
  2. Individuals who are eligible have preference in the following order:
    1. The individual last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;
    2. The spouse of the adult or an individual nominated by the adult’s spouse in accordance with the provisions of subsection (d) of this Code section;
    3. An adult child of the adult or an individual nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;
    4. A parent of the adult or an individual nominated by a parent of the adult in accordance with the provisions of subsection (d) of this Code section;
    5. A guardian appointed during the minority of the adult;
    6. A guardian previously appointed in Georgia or another state;
    7. A friend, relative, or any other individual;
    8. Any other person, including a volunteer to the court, found suitable and appropriate who is willing to accept the appointment; and
    9. The county guardian.

    (b.1) If no other person is available to serve as guardian of the ward, the judge may appoint a public guardian in accordance with Chapter 10 of this title. In the event the court determines that there is no public guardian registered in accordance with Chapter 10 of this title appropriately available to serve as guardian for a ward, the court may appoint the Department of Human Services as guardian. If so appointed, the department shall designate a representative of the department to provide guardian services who shall take the oath of guardianship. If, after having been so appointed, the department presents to the court a public guardian registered in accordance with Chapter 10 of this title or some other person suitable and appropriate to serve as guardian of a ward and willing to so serve, the court shall allow the department to resign and shall appoint such public guardian or such other person. If the department is appointed pursuant to this subsection, it shall be bound by all the requirements of this chapter, except that it shall not be required to post bond or pay any cost or fee of court associated with the guardianship proceeding. If the department is appointed pursuant to this subsection and enters into a contract with an independent contractor for the provision of guardianship services, the expense of providing such services may be paid for from state funds appropriated for public guardians under Chapter 10 of this title or, upon approval of the court, from the estate of the ward.

  3. At any time prior to the appointment of a guardian, an adult may nominate in writing an individual to serve as that adult’s guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section 31-32-5.
  4. At any time prior to the appointment of a guardian, a spouse, adult child, or parent of an adult may nominate in writing an individual to serve as that adult’s guardian should the adult be judicially determined to be in need of a guardian, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.
  5. A writing nominating the guardian of an adult:
    1. Must contain an express nomination of the individual who shall serve as guardian and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual’s presence; and
    2. May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

      A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

History. — Code 1981, § 29-4-3 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 509, § 3/HB 394; Ga. L. 2007, p. 133, § 7/HB 24; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2011, p. 752, § 29/HB 142.

Editor’s notes. — For application of this statute in 2020, see Executive Order 04.09.20.01.

History. — Code 1981, § 29-4-3 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 509, § 3/HB 394; Ga. L. 2007, p. 133, § 7/HB 24; Ga. L. 2009, p. 453, § 2-2/HB 228; Ga. L. 2011, p. 752, § 29/HB 142.

Editor’s notes. —

Ga. L. 2005, p. 509, § 9/HB 394, not codified by the General Assembly, provides: “This Act shall become effective on July 1, 2005, and all appointments of guardians of the person made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: “(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

“(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

“(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

“(d) The General Assembly finds that the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.”

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 and 2021 can be found at https://gov.georgia.gov/executive-action/executive-orders.

Law reviews. —

For survey article on wills, trusts, guardianships, and fiduciary administration, see 59 Mercer L. Rev. 447 (2007).

For article, “Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia’s Same Sex Spouses,” see 21 Ga. St. Bar. J. 9 (Oct. 2015).

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

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.

Article 2 Procedure for Appointment

29-4-10. Petition for appointment of guardian; requirements for petition.

  1. Any interested person, including the proposed ward, may file a petition for the appointment of a guardian. Such petition shall be filed in the court of the county in which:
    1. The proposed ward is domiciled;
    2. The proposed ward is found; provided, however, that if the court of the county where the proposed ward is found determines that the proposed ward was removed to such county solely for the purposes of filing a petition for the appointment of a guardian and that such court acquired jurisdiction to appoint a guardian because of unjustifiable conduct, such court may take any action authorized by Code Section 29-11-16; or
    3. Jurisdiction is otherwise proper under Code Section 29-11-12.
  2. The petition for appointment of a guardian shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and county of domicile of the proposed ward, if known;
    3. The name, address, and county of domicile of the petitioner or petitioners and the petitioner’s relationship to the proposed ward, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as guardian and that person’s relationship to the proposed ward, if any;
    4. A statement of the reasons the guardianship is sought, including the facts which support the claim of the need for a guardian;
    5. Any foreseeable limitations on the guardianship;
    6. Whether, to the petitioner’s knowledge, there exists any living will, durable power of attorney for health care, advance directive for health care, order relating to cardiopulmonary resuscitation, or other instrument that deals with the management of the person of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;
    7. The names and addresses of the following whose whereabouts are known:
      1. The spouse of the proposed ward; and
      2. All children of the proposed ward; or
      3. If there are no adult children, then at least two adults in the following order of priority:
        1. Lineal descendants of the proposed ward;
        2. Parents and siblings of the proposed ward; and
        3. Friends of the proposed ward;
    8. If known, the name and address of any individual nominated to serve as guardian by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-4-3;
    9. If known, the name and address of any individual nominated to serve as guardian by the proposed ward’s spouse, adult child, or parent, as described in paragraph (2), (3), or (4) of subsection (b) of Code Section 29-4-3;
    10. Whether any nominated guardian has consented or will consent to serve as guardian;
    11. If known, whether any nominated guardian is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the proposed ward is receiving care, and, if so, whether the nominated guardian is related to the proposed ward by blood, marriage, or adoption;
    12. Whether an emergency guardian has been appointed for the proposed ward or a petition for the appointment of an emergency guardian has been filed or is being filed;
    13. If known, a disclosure of any ownership or other financial interest that would cause any nominated guardian to have a conflict of interest with the proposed ward;
    14. A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are requested by the guardian and a statement of the circumstances that would justify the granting of additional powers;
    15. Whether a guardian or conservator has been appointed in another state or whether a petition for the appointment of a guardian or conservator is pending in another state;
    16. That to petitioner’s knowledge, there has been no petition for guardianship denied or dismissed within two years by any court of this state or, if so, that there has been a significant change in the condition or circumstances of the individual, as shown by the accompanying affidavits or evaluation;
    17. Any state in which the proposed ward was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition or ending within the six months prior to the filing of the petition; and
    18. The reason for any omission in the petition for appointment of a guardian in the event full particulars are lacking.
    1. The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker who is authorized to practice in that facility.
    2. Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based on the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward’s health or safety.
    3. In addition to stating the facts that support the claim of the need for a guardian, the affidavit shall state the foreseeable duration of the guardianship and may set forth the affiant’s opinion as to any other limitations on the guardianship.
  3. Within six months prior to the date a minor in the custody of the Division of Family and Children Services of the Department of Human Services reaches 18 years of age, the Division of Family and Children Services may file a petition for the appointment of a guardian for the minor when that minor becomes an adult, in accordance with the provisions of this article, to take effect on or after the date the minor reaches 18 years of age.

History. — Code 1981, § 29-4-10 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2007, p. 133, § 8/HB 24; Ga. L. 2013, p. 884, § 1/HB 446; Ga. L. 2019, p. 693, § 6/HB 70; Ga. L. 2021, p. 151, § 14/HB 154.

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: “Any interested person or persons, including the proposed ward, may file a petition for the appointment of a guardian. The petition shall be filed in the court of the county in which the proposed ward is domiciled or is found, provided that the court of the county where the proposed ward is found shall not have jurisdiction to hear any guardianship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing a petition for the appointment of a guardian.”

The 2021 amendment, effective July 1, 2021, added subsection (d).

Editor’s notes. —

Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: “(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

“(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

“(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

“(d) The General Assembly finds that the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.”

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

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), cert. denied, No. S97C1065, 1997 Ga. LEXIS 670 (Ga. June 27, 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), cert. denied, No. S95C1849, 1995 Ga. LEXIS 1211 (Ga. Nov. 3, 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 (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 (1965) (decided under former Code 1933, § 49-604).

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. Atty 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. Atty 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. Atty 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.

Am. Jur. Pleading and Practice Forms. —

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

Am. Jur. Trials. —

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.

29-4-11. Prerequisite judicial finding of probable cause; notice; petition; evaluations; reporting requirements.

  1. Upon the filing of a petition for guardianship of a proposed ward, the court shall review the petition and the affidavit, if any, and determine whether there is probable cause to believe that the proposed ward is in need of a guardian within the meaning of Code Section 29-4-1.
  2. If the court determines that there is no probable cause to believe that the proposed ward is in need of a guardian, the court shall dismiss the petition and provide the proposed ward with a copy of the petition, the affidavit, if any, and the order dismissing the petition.
  3. If the court determines that there is probable cause to believe that the proposed ward is in need of a guardian:
    1. The court shall immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall:
      1. Be served personally on the proposed ward by an officer of the court and shall not be served by mail;
      2. Inform the proposed ward that a petition has been filed to have a guardian appointed for the proposed ward, that the proposed ward has the right to attend any hearing that is held, and that, if a guardian is appointed, the proposed ward may lose important rights to control the management of the proposed ward’s person;
      3. Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by subsection (d) of this Code section; and
      4. Inform the proposed ward of the proposed ward’s right to independent legal counsel and that the court shall appoint counsel within two days of service unless the proposed ward indicates that he or she has retained counsel in that time frame;
    2. Upon notice that the proposed ward has retained legal counsel or upon the appointment of legal counsel by the court, the court shall furnish legal counsel with a copy of the petition, the affidavit, if any, and the order for evaluation provided for by subsection (d) of this Code section;
    3. The court shall give notice of the petition by first-class mail to all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (7), (8), and (9) of subsection (b) of Code Section 29-4-10; and
    4. On the motion of any interested person or on the court’s own motion, the court shall determine whether to appoint a guardian ad litem.
    1. If the petition is not dismissed under subsection (b) of this Code section, the court shall appoint an evaluating physician who shall be a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or licensed clinical social worker or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that federal facility, other than the physician, psychologist, or licensed clinical social worker who completed the affidavit attached to the petition pursuant to subsection (c) of Code Section 29-4-10.
    2. When evaluating the proposed ward, the physician, psychologist, or licensed clinical social worker shall explain the purpose of the evaluation to the proposed ward. The proposed ward may remain silent. Any statements made by the proposed ward during the evaluation shall be privileged and shall be inadmissable as evidence in any proceeding other than a proceeding under this chapter. The proposed ward’s legal counsel shall have the right to be present but shall not participate in the evaluation.
    3. The evaluation shall be conducted with as little interference with the proposed ward’s activities as possible. The evaluation shall take place at the place and time set in the notice to the proposed ward and the legal counsel and the time set shall not be sooner than the fifth day after the service of notice on the proposed ward. The court, however, shall have the exclusive power to change the place and time of the examination at any time upon reasonable notice being given to the proposed ward and to his or her legal counsel. If the proposed ward fails to appear, the court may order that the proposed ward be taken directly to and from a medical facility or the office of the physician, psychologist, or licensed clinical social worker for purposes of evaluation only. The evaluation shall be conducted during the normal business hours of the facility or office and the proposed ward shall not be detained in the facility or office overnight. The evaluation may include, but not be limited to:
      1. A self-report from the proposed ward, if possible;
      2. Questions and observations of the proposed ward to assess the functional abilities of the proposed ward;
      3. A review of the records for the proposed ward including, but not limited to, medical records, medication charts, and other available records;
      4. An assessment of cultural factors and language barriers that may impact the proposed ward’s abilities and living environment; and
      5. All other factors the evaluator determines to be appropriate to the evaluation.
    4. A written report shall be filed with the court no later than seven days after the evaluation and the court shall serve a copy of the report by first-class mail upon the proposed ward and the proposed ward’s legal counsel and, if any, the guardian ad litem.
    5. The report shall be signed under oath by the physician, psychologist, or licensed clinical social worker and shall:
      1. State the circumstances and duration of the evaluation, including a summary of questions or tests utilized, and the elements of the evaluation;
      2. List all persons and other sources of information consulted in evaluating the proposed ward;
      3. Describe the proposed ward’s mental and physical state and condition, including all observed facts considered by the physician or psychologist or licensed clinical social worker;
      4. Describe the overall social condition of the proposed ward, including support, care, education, and well-being; and
      5. Describe the needs of the proposed ward and their foreseeable duration.
    6. The proposed ward’s legal counsel may file a written response to the evaluation, provided the response is filed no later than the date of the commencement of the hearing. The response may include, but is not limited to, independent evaluations, affidavits of individuals with personal knowledge of the proposed ward, and a statement of applicable law.

History. — Code 1981, § 29-4-11 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

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 (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), cert. denied, No. S97C1065, 1997 Ga. LEXIS 670 (Ga. June 27, 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 (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 (1965) (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).

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. Atty 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. Atty 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. Atty 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.

Am. Jur. Pleading and Practice Forms. —

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.

29-4-12. Judicial review of pleadings and evaluation report; findings; hearing.

  1. After the filing of the evaluation report, the court shall review the pleadings and the evaluation report.
  2. If, after the review, the court finds that there is no probable cause to support a finding that the proposed ward is in need of a guardian within the meaning of Code Section 29-4-1, the court shall dismiss the petition.
  3. If, after the review, the court finds that there is probable cause to support a finding that the proposed ward is in need of a guardian, the court shall schedule a hearing on the petition. Notice of the hearing shall be served by first-class mail upon the proposed ward, the proposed ward’s legal counsel, and the proposed ward’s guardian ad litem, if any; the petitioner or the petitioner’s legal counsel, if any; and all adult individuals and other persons who are named in the petition pursuant to the requirements of paragraphs (7), (8), and (9) of subsection (b) of Code Section 29-4-10. The date of the hearing shall not be less than ten days after the notice is mailed.
    1. The hearing shall be held in a courtroom or, for good cause shown, at such other place as the court may choose. At the request of the proposed ward or the proposed ward’s legal counsel and for good cause shown, the court may exercise its discretion to exclude the public from the hearing and the record shall reflect the court’s action. The proposed ward or the proposed ward’s legal counsel may waive the appearance of the proposed ward at the hearing.
    2. The hearing shall be recorded by either a certified court reporter or a sound-recording device. The recording shall be retained for not less than 45 days from the date of the entry of the order described in Code Section 29-4-13.
    3. The court shall apply the rules of evidence applicable in civil cases.
    4. The court shall utilize the criteria in Code Section 29-4-1 to determine whether there is clear and convincing evidence of the need for a guardianship in light of the evidence taken at the hearing. In addition, the court may consider the evaluation report and any response filed by the proposed ward. The burden of proof shall be upon the petitioner.
    5. Upon determination of the need for a guardianship, the court shall determine the powers, if any, which are to be retained by the proposed ward, in accordance with the provisions of Code Section 29-4-21 and whether any additional powers are to be granted to the guardian, pursuant to the provisions of subsection (b) of Code Section 29-4-23.
    6. If the court determines that a guardianship is necessary and the proposed ward is present, the proposed ward may suggest any individual as guardian. The court shall select as guardian the individual who will serve the best interest of the ward.
    7. In any procedure under this chapter in which the judge of the court is unable to hear a case within the time required for such hearing, the judge shall appoint an individual to hear the case and exercise all the jurisdiction of the court in the case. Any individual appointed shall be a member of the State Bar of Georgia who is qualified to serve as the probate judge in that county and who is, in the opinion of the appointing judge, qualified for the duties by training and experience. The appointment may be made on a case-by-case basis or by making a standing appointment of one or more individuals. Any individual who receives a standing appointment shall serve at the pleasure of the judge who makes the appointment or the judge’s successor in office. The compensation of an individual appointed shall be as agreed upon by the judge who makes the appointment and the individual appointed, with the approval of the governing authority of the county for which the individual is appointed, and shall be paid from county funds. All fees collected for the service of the appointed individual shall be paid into the general funds of the county.

History. — Code 1981, § 29-4-12 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

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), cert. denied, No. S97C1065, 1997 Ga. LEXIS 670 (Ga. June 27, 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), cert. denied, No. S95C1849, 1995 Ga. LEXIS 1211 (Ga. Nov. 3, 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 (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 (1965) (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 (Ga. Ct. App. 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), cert. denied, No. S96C0020, 1995 Ga. LEXIS 1226 (Ga. Dec. 1, 1995) (decided under former O.C.G.A. § 29-5-6).

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. Atty 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. Atty 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. Atty 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.

29-4-13. Requirements of order granting guardianship; service.

  1. The court shall issue an order that sets forth the findings of fact and conclusions of law that support the grant or denial of the petition. An order granting guardianship shall specify:
    1. The name of the guardian and the basis for the selection;
    2. Any powers retained by the ward pursuant to Code Section 29-4-21;
    3. The limitations on the guardianship;
    4. A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are granted to the guardian;
    5. If only a guardian is appointed or if the guardian and the conservator appointed are not the same person, the reasonable sums of property to be provided the guardian to provide adequately for the ward’s support, care, education, health, and welfare, subject to modification by subsequent order of the court;
    6. The type and frequency of any physical, mental, and social evaluations of the ward’s condition which the court may require to supplement the reports submitted pursuant to paragraph (9) of subsection (a) of Code Section 29-4-22; and
    7. Such other and further provisions of the guardianship as the court shall determine to be in the best interest of the ward, stating the reasons therefor.
  2. Service of the court’s order shall be made by first-class mail upon the ward, the ward’s legal counsel, the guardian ad litem, if any, the guardian, the petitioner, and other persons designated for service of the petition for guardianship.
  3. After service of an order granting guardianship, the ward’s legal counsel shall make reasonable efforts to explain to the ward the order and the ward’s rights under the order.

History. — Code 1981, § 29-4-13 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

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), cert. denied, No. S15C0662, 2015 Ga. LEXIS 206 (Ga. Mar. 30, 2015).

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 (Ga. Ct. App. 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), cert. denied, No. S96C0020, 1995 Ga. LEXIS 1226 (Ga. Dec. 1, 1995) (decided under former O.C.G.A. § 29-5-6).

OPINIONS OF THE ATTORNEY GENERAL

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. Atty 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. Atty 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. Atty 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.

29-4-14. Petition for appointment of emergency guardian; requirements of petition.

  1. Any interested person, including the proposed ward, may file a petition for the appointment of an emergency guardian. Such petition shall be filed in the court of the county in which:
    1. The proposed ward is domiciled;
    2. The proposed ward is found; or
    3. Jurisdiction is otherwise proper under Code Section 29-11-12.
  2. The petition for appointment of an emergency guardian shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and county of domicile of the proposed ward, if known;
    3. The name, address, and county of domicile of the petitioner and the petitioner’s relationship to the proposed ward;
    4. A statement of the reasons the emergency guardianship is sought, including the facts that support the need for a guardian and the facts that establish an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed;
    5. The reasons why compliance with the procedures of Code Sections 29-4-10 through 29-4-13 is not appropriate in the circumstances;
    6. The fact that no other person appears to have authority and willingness to act in the circumstances, whether under a power of attorney, trust, or otherwise; and
    7. The reason for any omission in the petition for appointment of emergency guardian in the event full particulars are lacking.
  3. The petition shall state whether a petition for the appointment of a guardian or conservator has been filed or is being filed in conjunction with the petition for the appointment of an emergency guardian.
    1. The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that facility.
    2. Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based on the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward’s health or safety and that there is an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian is appointed.
    3. In addition to stating the facts that support the claim of the need for an emergency guardianship, the affidavit shall state the foreseeable duration of the emergency guardianship and may set forth the affiant’s opinion as to any other limitations on the emergency guardianship.

History. — Code 1981, § 29-4-14 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 7/HB 70.

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: “Any interested person, including the proposed ward, may file a petition for the appointment of an emergency guardian. The petition shall be filed in the court of the county in which the proposed ward is domiciled or is found.”

JUDICIAL DECISIONS

Petition properly denied. —

Probate court did not err by dismissing the hospital’s petition for emergency guardianship for failure to satisfy the requirements of O.C.G.A. § 29-4-14 (b)(4) because the hospital presented nothing to satisfy § 29-4-14 ’s requirement of establishing an immediate and substantial risk of death or serious physical injury, illness, or disease unless an emergency guardian was appointed. In the Interest of Farr, 322 Ga. App. 55 , 743 S.E.2d 615 (2013).

OPINIONS OF THE ATTORNEY GENERAL

Editor’s notes. — In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-9 are included in the annotations for this Code section.

Right to jury trial. — If the appointment of an emergency guardian under former O.C.G.A. § 29-5-8 is only for that period of time pending the outcome either of the emergency guardianship hearing or the permanent guardianship hearing, the order would not be final or appealable to a jury in superior court, and hence would not be subject to Ga. L. 1986, p. 982, affecting procedures before the probate court in certain counties; on the other hand, if the petition before the probate court sought only an emergency guardian for a period not to exceed 45 days, as in a situation where immediate surgical or other medical consent was required for a seriously ill person proposed to be a ward, an order granting such a petition, which would leave nothing further to be decided by the probate court, would be final, appealable to a superior court jury, and hence would be a “civil case” under the 1986 Act, giving a party a right to demand a jury trial. 1986 Op. Atty Gen. No. U86-18 (decided under former O.C.G.A. § 29-5-8).

29-4-15. Prerequisite findings prior to appointment of emergency guardian; evaluation; notice; hearing.

  1. Upon the filing of a petition for an emergency guardianship, the court shall review the petition and the affidavit, if any, to determine whether there is probable cause to believe that the proposed ward is in need of an emergency guardian within the meaning of paragraph (4) of subsection (b) of Code Section 29-4-14.
  2. If the court determines that there is no probable cause to believe that the proposed ward is in need of an emergency guardian, the court shall dismiss the petition and provide the proposed ward with a copy of the petition, the affidavit, if any, and the order dismissing the petition.
  3. If the court determines that there is probable cause to believe that the proposed ward is in need of an emergency guardian, the court shall:
    1. Immediately appoint legal counsel to represent the proposed ward at the emergency hearing, which counsel may be the same counsel who is appointed to represent the proposed ward in the hearing on the petition for guardianship or conservatorship, if any such petition has been filed, and shall inform counsel of the appointment;
    2. Order an emergency hearing to be conducted not sooner than three days nor later than five days after the filing of the petition;
    3. Order an evaluation of the proposed ward by a physician who shall be a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, other than the physician, psychologist, or licensed clinical social worker who completed the affidavit attached to the petition pursuant to paragraph (1) of subsection (d) of Code Section 29-4-10. The evaluation shall be conducted within 72 hours of the time the order was issued and a written report shall be furnished to the court and made available to the parties within this time frame, which evaluation and report shall be governed by the provisions of subsection (d) of Code Section 29-4-11;
    4. Immediately notify the proposed ward of the proceedings by service of all pleadings on the proposed ward, which notice shall:
      1. Be served personally on the proposed ward by an officer of the court and shall not be served by mail;
      2. Inform the proposed ward that a petition has been filed to have an emergency guardian appointed for the proposed ward, that the proposed ward has the right to attend any hearing that is held, and that, if an emergency guardian is appointed, the proposed ward may lose important rights to control the management of the proposed ward’s person;
      3. Inform the proposed ward of the place and time at which the proposed ward shall submit to the evaluation provided for by paragraph (3) of this subsection;
      4. Inform the proposed ward of the appointment of legal counsel; and
      5. Inform the proposed ward of the date and time of the hearing on the emergency guardianship; and
    5. Appoint an emergency guardian to serve until the emergency hearing, with or without prior notice to the proposed ward, if the threatened risk is so immediate and the potential harm so irreparable that any delay is unreasonable and the existence of the threatened risk and potential for irreparable harm is certified by the affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker. Appointment of an emergency guardian under this paragraph is not a final determination of the proposed ward’s need for a nonemergency guardian. Any emergency guardian appointed under this paragraph shall have only those powers and duties specifically enumerated in the letters of emergency guardianship and the powers and duties shall not exceed those absolutely necessary to respond to the immediate threatened risk to the ward.

History. — Code 1981, § 29-4-15 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 10/SB 534.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-8 are included in the annotations for this Code section.

29-4-16. Conduct of emergency guardianship hearing; limitations on emergency guardianship.

  1. The court shall conduct the emergency guardianship hearing, at the time and date set forth in its order, to determine whether there is clear and convincing evidence of the need for an emergency guardianship in light of the evidence taken at the hearing. In addition to the evidence at the hearing, the court may consider the evaluation report and any response filed by the proposed ward. The burden of proof shall be upon the petitioner. Upon the consent of the petitioner and the proposed ward, the court may grant a continuance of the case for a period not to exceed 30 days.
  2. If the court at the emergency hearing finds that an emergency guardianship is necessary, the court shall order the emergency guardianship; provided, however, that:
    1. Any emergency guardian shall have only those powers and duties specifically enumerated in the letters of emergency guardianship and the powers and duties shall not exceed those absolutely necessary to respond to the immediate threatened risk to the ward;
    2. The court may order the emergency guardian to make any report the court requires; and
    3. The emergency guardianship shall terminate on the earliest of:
      1. The court’s removal of the emergency guardian, with or without cause;
      2. The effective date of the appointment of a guardian;
      3. Unless otherwise specified in the order of dismissal, the dismissal of a petition for appointment of a guardian;
      4. The date specified for the termination in the order appointing the emergency guardian;
      5. Sixty days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (1) of Code Section 29-11-12; or
      6. Ninety days from the date of appointment of the emergency guardian, provided that the court had jurisdiction to issue such order under paragraph (2) or (3) of Code Section 29-11-12.

History. — Code 1981, § 29-4-16 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2019, p. 693, § 8/HB 70.

The 2019 amendment, effective January 1, 2020, deleted “or” at the end of subparagraph (b)(3)(D); added the proviso at the end of subparagraph (b)(3)(E); and added subparagraph (b)(3)(F).

OPINIONS OF THE ATTORNEY GENERAL

Editor’s notes. — In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-8 are included in the annotations for this Code section.

Right to jury trial. — If the appointment of an emergency guardian under former O.C.G.A. § 29-5-8 is only for that period of time pending the outcome either of the emergency guardianship hearing or the permanent guardianship hearing, the order would not be final or appealable to a jury in superior court, and hence would not be subject to Ga. L. 1986, p. 982, affecting procedures before the probate court in certain counties; on the other hand, if the petition before the probate court sought only an emergency guardian for a period not to exceed 45 days, as in a situation where immediate surgical or other medical consent was required for a seriously ill person proposed to be a ward, an order granting such a petition, which would leave nothing further to be decided by the probate court, would be final, appealable to a superior court jury, and hence would be a “civil case” under the 1986 Act, giving a party a right to demand a jury trial. 1986 Op. Atty Gen. No. U86-18 (decided under former O.C.G.A. § 29-5-8).

29-4-17. Responsibility for paying expenses of any hearing.

Repealed by Ga. L. 2019, p. 693, § 9/HB 70, effective January 1, 2020.

Editor’s notes. —

This Code section was based on Ga. L. 2006, p. 805, § 11/SB 534.

29-4-18. Temporary medical consent guardianship.

  1. As used in this Code section, the term:
    1. “Adult unable to consent” means a person 18 years of age or older who has been determined in his or her medical records by a licensed physician after the physician has personally examined the adult that he or she lacks sufficient understanding or capacity to make significant responsible decisions regarding his or her medical treatment or the ability to communicate by any means such decisions.
    2. “Life-sustaining procedures” means medications, machines, or other medical procedures or interventions which, when applied to a medical consent ward in a terminal condition or in a state of permanent unconsciousness, could in reasonable medical judgment keep such medical consent ward alive but cannot cure the medical consent ward and where, in the judgment of the medical consent ward’s primary treating physician and a second physician, death will occur without such procedures or interventions.
    3. “Medical consent ward” means a ward for whom the court has appointed a temporary medical consent guardian pursuant to this Code section for a limited time and only for the purposes of consenting to surgical or medical treatment or procedures not prohibited by law.
    4. “Proposed medical consent ward” means an adult unable to consent who is or has been a patient in a health care institution or of a health care provider.
    5. “State of permanent unconsciousness” means an incurable or irreversible condition in which the medical consent ward is not aware of himself or herself or his or her environment and in which such medical consent ward is showing no behavioral response to his or her environment.
    6. “Temporary medical consent guardian” means an individual appointed pursuant to the provisions of this Code section for a limited time and only for the purposes of consenting to surgical or medical treatment or procedures not prohibited by law.
    7. “Terminal condition” means an incurable or irreversible condition which would result in the medical consent ward’s death in a relatively short period of time.
  2. In the absence, after reasonable inquiry, of a person authorized or willing to consent for the proposed medical consent ward under the provisions of Code Section 31-9-2, any interested person, including the proposed medical consent ward, may file a petition for the appointment of a temporary medical consent guardian. The petition shall be filed in the court of the county in which the proposed medical consent ward is domiciled or is found.
  3. The petition for appointment of a temporary medical consent guardian shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and county of domicile of the proposed medical consent ward, if known;
    3. The name, address, and county of domicile of the petitioner and the petitioner’s relationship to the proposed medical consent ward;
    4. A statement of the reasons the temporary medical consent guardian is sought, including:
      1. Facts that support the need for such guardian including facts that establish what medical decisions are needed and why those decisions are needed without undue delay;
      2. Facts that support the determination that the proposed medical consent ward lacks sufficient capacity to make or communicate medical treatment decisions; and
      3. The anticipated duration of the temporary medical consent guardianship;
    5. The fact that no other person appears to have authority and willingness to act in the circumstances, whether under a power of attorney, trust, or otherwise;
    6. The reason for any omission in the petition for an appointment of a temporary medical consent guardian in the event full particulars are lacking; and
    7. Whether a petition for the appointment of a guardian or conservator has been filed or is being filed in conjunction with the petition for the appointment of the temporary medical consent guardian.
  4. Upon the filing of a petition for a temporary medical consent guardian, the court shall review the petition to determine whether there is probable cause to believe that the proposed medical consent ward lacks decision-making capacity and is in need of a temporary medical consent guardian and either:
    1. Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition; or
    2. If the court determines that there is probable cause to believe that the proposed medical consent ward is in need of a temporary medical consent guardian, immediately:
      1. Appoint legal counsel to represent the proposed medical consent ward, which counsel may be the same counsel who is appointed to represent such adult in the hearing on the petition for guardianship, if any such petition has been filed, and the court shall inform counsel of the appointment;
      2. Order a preliminary hearing to be conducted within 72 hours after the filing of the petition; and
      3. Notify any proposed medical consent ward of any proceedings by service of all pleadings on such proposed medical consent ward, which notice shall be served personally on the proposed medical consent ward by a person specially appointed by the court for such purpose and shall not be served by mail, and such notice shall inform the proposed medical consent ward:
        1. That he or she has the right to attend any hearing that is held in connection with the petition to appoint a temporary medical consent guardian;
        2. That he or she may lose important rights to control the management of his or her person if a temporary medical consent guardian is appointed;
        3. That legal counsel has been appointed on his or her behalf; and
        4. The date and time of the preliminary hearing on the petition to appoint a temporary medical consent guardian.
  5. Unless waived by the court, notice of the petition and the preliminary hearing shall also be served on the following persons who have not joined in the petition or otherwise consented to the proceedings:
    1. The administrator of the hospital or other health care facility where the proposed medical consent ward is located;
    2. The primary treating physician and other physicians believed to have provided any medical opinion or advice about any condition of the proposed medical consent ward relevant to the petition;
    3. All other persons the petitioner believes may have information concerning the expressed wishes of the proposed medical consent ward; and
    4. Any other persons as the court may direct.
  6. At the preliminary hearing, the court, in its discretion, shall:
    1. Appoint a temporary medical consent guardian;
    2. Order an evidentiary hearing to be conducted not later than four days after the preliminary hearing; or
    3. Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition.
  7. If the court orders an evidentiary hearing, in addition to any other evidence presented to the court, the court may consider any case review by the hospital’s or health care facility’s ethics committee or subcommittee thereof or by any other ethics mechanism selected by the hospital or health care facility.
  8. If the court holds an evidentiary hearing, the court, in its discretion, shall either:
    1. Appoint a temporary medical consent guardian; or
    2. Dismiss the petition and provide the proposed medical consent ward with the order dismissing the petition.
  9. The court shall have the authority to appoint as a temporary medical consent guardian any individual the court deems fit with consideration given to any applicable conflict of interest issue so as long as such individual is: (1) willing and able to become involved in the proposed medical consent ward’s health care decisions and (2) willing to exercise reasonable care, diligence, and prudence and to consent in good faith to medical or surgical treatment or procedures which the proposed medical consent ward would have wanted had he or she not been incapacitated. Where the proposed medical consent ward’s preferences are not known, the temporary medical consent guardian shall agree to act in the proposed medical consent ward’s best interests. However, a temporary medical consent guardian shall not be authorized to withdraw life-sustaining procedures unless specifically authorized by the court pursuant to this Code section.
  10. The temporary medical consent guardianship shall terminate on the earliest of:
    1. The court’s removal of the temporary medical consent guardian;
    2. The effective date of the appointment of a permanent guardian under Code Section 29-4-2;
    3. The duration of the current hospitalization of the medical consent ward or a substantially continuous stay in another health care facility; or
    4. Sixty days from the date of appointment of the temporary medical consent guardian.
    1. No hospital or other health care facility, health care provider, or other person or entity shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for relying in good faith on any direction or decision by a temporary medical consent guardian, even if death or injury to the medical consent ward ensues. Each hospital or other health care facility, health care provider, and any other person or entity who acts in good faith reliance on any direction or decision by a temporary medical consent guardian shall be protected and released to the same extent as though such person had interacted directly with the medical consent ward as a fully competent person.
    2. No temporary medical consent guardian who, in good faith, acts with due care for the benefit of the medical consent ward, or who fails to act, shall be subject to civil or criminal liability for such action or inaction.

History. — Code 1981, § 29-4-18 , enacted by Ga. L. 2010, p. 852, § 2/SB 367; Ga. L. 2011, p. 705, § 6-3/HB 214; Ga. L. 2012, p. 83, § 2/HB 247; Ga. L. 2013, p. 684, § 1/SB 158; Ga. L. 2015, p. 305, § 5/SB 109.

Cross references. —

Persons authorized to consent to surgical or medical treatment, § 31-9-2 .

Health records, T. 31, C. 33.

Law reviews. —

For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 147 (2011).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

Article 3 Protection of the Ward

29-4-20. Rights of the ward; impact on voting and testamentary capacity.

  1. In every guardianship, the ward has the right to:
    1. A qualified guardian who acts in the best interest of the ward;
    2. A guardian who is reasonably accessible to the ward;
    3. Have the ward’s property utilized to provide adequately for the ward’s support, care, education, health, and welfare;
    4. Communicate freely and privately with persons other than the guardian, except as otherwise ordered by a court of competent jurisdiction;
    5. Individually, or through the ward’s representative or legal counsel, bring an action relating to the guardianship, including the right to file a petition alleging that the ward is being unjustly denied a right or privilege granted by this chapter and Chapter 5 of this title and including the right to bring an action to modify or terminate the guardianship pursuant to the provisions of Code Sections 29-4-41 and 29-4-42;
    6. The least restrictive form of guardianship assistance, taking into consideration the ward’s functional limitations, personal needs, and preferences; and
    7. Be restored to capacity at the earliest possible time.
  2. The appointment of a guardian is not a determination regarding the right of the ward to vote.
  3. The appointment of a guardian is not a determination that the ward lacks testamentary capacity.

History. — Code 1981, § 29-4-20 , enacted by Ga. L. 2004, p. 161, § 1.

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

JUDICIAL DECISIONS

Father had right to visitation with child over guardian’s objection. —

Although a disabled adult child’s mother as guardian had authority to exercise the powers reasonably necessary to provide for the child’s health and welfare, O.C.G.A. § 29-4-23(a)(4), the child had the right to communicate freely with persons other than the guardian, pursuant to O.C.G.A. § 29-4-20(a)(4). In the absence of any medical or other direct testimony that visitation would have a negative impact on the child, the child’s father had the right to visitation with his daughter over the mother’s objection. Mitchum v. Manning, 304 Ga. App. 842 , 698 S.E.2d 360 (2010).

29-4-21. Rights and privileges removed from ward upon appointment of guardian.

  1. Unless the court’s order specifies that one or more of the following powers are to be retained by the ward, the appointment of a guardian shall remove from the ward the power to:
    1. Contract marriage;
    2. Make, modify, or terminate other contracts;
    3. Consent to medical treatment;
    4. Establish a residence or dwelling place;
    5. Change domicile;
    6. Revoke a revocable trust established by the ward; and
    7. Bring or defend any action at law or equity, except an action relating to the guardianship.
  2. The mere appointment of a guardian does not revoke the powers of an agent who was previously appointed by the ward to act as an agent under a durable power of attorney for health care or health care agent under an advance directive for health care.

History. — Code 1981, § 29-4-21 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2007, p. 133, § 9/HB 24.

Editor’s notes. —

Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: “(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

“(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

“(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

“(d) The General Assembly finds that the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care.”

RESEARCH REFERENCES

C.J.S. —

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

29-4-22. Decisions on ward’s well-being; obligations of guardian; liability of guardian.

  1. Except as otherwise provided by law or by the court, a guardian shall make decisions regarding the ward’s support, care, education, health, and welfare. A guardian shall, to the extent feasible, encourage the ward to participate in decisions, act on the ward’s own behalf, and develop or regain the capacity to manage the ward’s personal affairs. To the extent known, a guardian, in making decisions, shall consider the expressed desires and personal values of the ward. A guardian shall at all times act as a fiduciary in the ward’s best interest and exercise reasonable care, diligence, and prudence.
  2. A guardian shall:
    1. Respect the rights and dignity of the ward;
    2. Become or remain personally acquainted with the ward and maintain sufficient contact with the ward to know of the ward’s capacities, limitations, needs, opportunities, and physical and mental health;
    3. If necessary, petition to have a conservator appointed;
    4. Endeavor to cooperate with the conservator, if any;
    5. Take reasonable care of the ward’s personal effects;
    6. Arrange for the support, care, education, health, and welfare of the ward, considering the ward’s needs and available resources;
    7. Expend money of the ward that has been received by the guardian for the ward’s current needs for support, care, education, health, and welfare;
    8. Conserve for the ward’s future needs any excess money of the ward received by the guardian; provided, however, that if a conservator has been appointed for the ward, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the ward’s future needs;
    9. Within 60 days after appointment and within 60 days after each anniversary date of appointment, file with the court and provide to the ward and to the conservator, if any, a personal status report concerning the ward, which shall include:
      1. A description of the ward’s general condition, changes since the last report, and needs;
      2. All addresses of the ward during the reporting period and the living arrangements of the ward for all addresses;
      3. A description of the amount and expenditure of any funds that were received by the guardian pursuant to paragraph (7) of this subsection; and
      4. Recommendations for any alteration in the guardianship order;
    10. Promptly notify the court of any change in the ward’s condition that in the opinion of the guardian might require modification or termination of the guardianship;
    11. Promptly notify the court of any conflict of interest between the ward and the guardian when the conflict arises or becomes known to the guardian and take any action as is required by Code Section 29-4-24; and
    12. Keep the court informed of the guardian’s current address.
  3. A guardian, solely by reason of the guardian-ward relationship, is not personally liable for:
    1. The ward’s expenses or the expenses of those persons who are entitled to be supported by the ward;
    2. Contracts entered into in the guardian’s fiduciary capacity;
    3. The acts or omissions of the ward;
    4. Obligations arising from ownership or control of property of the ward; or
    5. Other acts or omissions occurring in the course of the guardianship.

History. — Code 1981, § 29-4-22 , enacted by Ga. L. 2004, p. 161, § 1.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 67 Mercer L. Rev. 273 (2015).

JUDICIAL DECISIONS

Editor’s notes. —

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

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).

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), cert. denied, No. S15C0662, 2015 Ga. LEXIS 206 (Ga. Mar. 30, 2015).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, §§ 38 et seq., 86 et seq., 185 et seq.

C.J.S. —

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

ALR. —

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.

29-4-23. Powers and rights of guardian; appointment of guardian ad litem; coordination and cooperation with conservator or others.

  1. Unless inconsistent with the terms of any court order relating to the guardianship, a guardian may:
    1. Take custody of the person of the ward and establish the ward’s place of dwelling within this state;
    2. Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent law, give any consents or approvals that may be necessary for medical or other professional care, counsel, treatment, or service for the ward;
    3. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the ward in the name of or on behalf of the ward; and
    4. Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health, and welfare of the ward.
  2. At the time of the appointment of the guardian or at any time thereafter, any of the following powers may be specifically granted by the court to the guardian upon such notice, if any, as the court shall determine, provided that no disposition of the ward’s property shall be made without the involvement of a conservator, if any:
    1. To establish the ward’s place of dwelling outside this state;
    2. To change the jurisdiction of the guardianship to another county in this state that is the county of the ward’s place of dwelling, pursuant to Code Section 29-4-80;
    3. To change the domicile of the ward to the ward’s or the guardian’s place of dwelling, in the determination of which the court shall consider the tax ramifications and succession and inheritance rights of the ward and other parties;
    4. To bring an action for the divorce of the ward based on any of the grounds listed in Code Section 19-5-3, except on the ground that the marriage is irretrievably broken;
    5. To consent to the adoption of the ward;
    6. To receive reasonable compensation from the estate of the ward for services rendered to the ward; and
    7. If there is no conservator, to disclaim or renounce any property or interest in property of the ward in accordance with the provisions of Code Section 53-1-20.
  3. Before granting any of the powers described in subsection (b) of this Code section, the court shall appoint a guardian ad litem for the ward.
  4. In granting any of the powers described in subsection (b) of this Code section, the court shall consider the property rights of the ward and the views of the conservator, if any, or, if there is no conservator, of others who have custody of the ward’s property.
  5. In performing any of the acts described in this Code section, the guardian shall act in coordination and cooperation with the conservator or, if there is no conservator, with others who have custody of the ward’s property.

History. — Code 1981, § 29-4-23 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 752, § 29/HB 142.

Cross references. —

Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1838, former Code 1895, § 2571, and former Code 1933, § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, are included in the annotations for this Code section.

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).

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).

Father had right to visitation with child over guardian’s objection. —

Although a disabled adult child’s mother as guardian had authority to exercise the powers reasonably necessary to provide for the child’s health and welfare, O.C.G.A. § 29-4-23(a)(4), the child had the right to communicate freely with persons other than the guardian, pursuant to O.C.G.A. § 29-4-20(a)(4). In the absence of any medical or other direct testimony that visitation would have a negative impact on the child, the child’s father had the right to visitation with his daughter over the mother’s objection. Mitchum v. Manning, 304 Ga. App. 842 , 698 S.E.2d 360 (2010).

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), cert. denied, No. S15C0662, 2015 Ga. LEXIS 206 (Ga. Mar. 30, 2015).

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).

Guardian lacked authority to sign arbitration agreement. —

Guardian did not have the authority to sign the arbitration agreement on the resident’s behalf because as the guardian’s consent to the voluntary arbitration agreement, the signing of which was not a requirement for admission to the facility or the receipt of services, did not serve the purpose of establishing a place for the resident to live or provide consent for medical or other care or treatment. The record did not reflect that signing the agreement was otherwise reasonably necessary to provide for the resident’s support, care, education, health, or welfare. CL SNF, LLC v. Fountain, 355 Ga. App. 176 , 843 S.E.2d 605 (2020), rev'd, 312 Ga. 416 , 863 S.E.2d 116 (2021).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

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.

29-4-24. Disclosure of conflicts of interest.

The guardian must promptly disclose any conflict of interest between the guardian and the ward when it arises or becomes known to the guardian and seek the court’s determination as to whether the conflict is insubstantial or if it is in the best interest of the ward for the guardian to continue to serve.

History. — Code 1981, § 29-4-24 , enacted by Ga. L. 2004, p. 161, § 1.

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

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

29-4-25. Oath or affirmation of guardian.

Before entering upon the duties of the appointment, every guardian appointed pursuant to the terms of this chapter shall take an oath or affirmation before the court to perform well and truly the duties required of a guardian and to account faithfully for the estate. The oath or affirmation of a guardian may be subscribed before the judge or clerk of any probate court of this state. The judge of the probate court who appoints the guardian shall have the authority to grant a commission to a judge or clerk of any court of record of any other state to administer the oath or affirmation.

History. — Code 1981, § 29-4-25 , enacted by Ga. L. 2004, p. 161, § 1.

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 .

Article 4 Requirement of Guardian

29-4-30. Bond; recording of bond; payment of bond premium.

    1. A guardian, including a guardian appointed in a final order accepting the transfer of a guardianship proceeding from another state issued under subsection (e) of Code Section 29-11-21, may be required to give bond with good and sufficient security in such amount as the court may determine from time to time.
    2. With respect to a guardianship order from another state that has been registered with and recorded by the court under Code Section 29-11-30, in addition to any action the court may take under paragraph (1) of this subsection or under subsection (b) of Code Section 29-11-32, such court of this state may communicate with the appointing court in such other state under subsection (a) of Code Section 29-11-4 to inform such appointing court of any action relating to a bond of such guardian, stating the reasons therefor.
  1. The clerk of the court shall record bonds in books kept for that purpose and shall retain custody of the bonds.
  2. If a guardian is required to give bond and has given as security one or more licensed commercial sureties authorized to transact business in this state, the bond premium shall, upon the request of the guardian, be paid from the estate of the ward.

History. — Code 1981, § 29-4-30 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2019, p. 693, § 10/HB 70.

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: “A guardian may be required to give bond with good and sufficient security in such amount as the court may determine from time to time.”; and substituted “shall, upon the request of the guardian, be paid from the estate of the ward” for “may be paid as part of the cost of administration” in subsection (c).

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).

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 .

Article 5 Review and Termination of Guardianship

RESEARCH REFERENCES

C.J.S. —

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

29-4-40. Inquiry into unjust denial of rights or privileges of ward.

  1. Upon the petition of any interested person, including the ward, or upon the court’s own motion, the court may conduct a judicial inquiry into whether the ward is being denied a right or privilege provided for by this chapter and may issue appropriate orders. Except for good cause shown, the court shall order that notice of the inquiry be given, in whatever form the court deems appropriate, to the ward, the guardian, the ward’s legal counsel, if any, and the ward’s conservator, if any. The court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both.
  2. No petition alleging that the ward is being unjustly denied a right or privilege provided for by this chapter shall be allowed by the court within two years after the denial or dismissal on the merits of a petition alleging that the ward is being unjustly denied substantially the same right or privilege unless the petitioner shows a significant change in the condition or circumstances of the ward.

History. — Code 1981, § 29-4-40 , enacted by Ga. L. 2004, p. 161, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1933, § 49-113, and former O.C.G.A. § 29-5-7 are included in the annotations for this Code section.

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).

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).

Probate court’s jurisdiction to approve the settlement of a malpractice claim and to protect the best interests of the incapacitated ward conferred upon that court the authority to require that the ward’s attorneys pay into the registry of court such settlement funds as the attorneys disbursed to themselves, and to hold them in contempt for their refusal to do so. Gnann v. Woodall, 270 Ga. 516 , 511 S.E.2d 188 (1999) (decided under former O.C.G.A. § 29-5-7).

Ward’s right to 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), cert. denied, No. S15C0662, 2015 Ga. LEXIS 206 (Ga. Mar. 30, 2015).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

39 C.J.S., Guardian and Ward, §§ 80 et seq., 255 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 .

29-4-41. Modification of guardianship.

  1. Upon the petition of any interested person, including the ward, or upon the court’s own motion, the court may modify the guardianship by adjusting the duties or powers of the guardian, as defined in Code Sections 29-4-22 and 29-4-23, or the powers of the ward, as defined in Code Sections 29-4-20 and 29-4-21, or by making other appropriate adjustments to reflect the extent of the current capacity of the ward or other circumstances of the guardianship. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the guardian, the ward’s legal counsel, and the ward’s conservator, if any. In any proceeding under this Code section that would expand or increase the powers of the guardian or further restrict the rights of the ward, the court shall appoint legal counsel for the ward. In all other cases, the court, in its discretion, may appoint legal counsel for the ward or a guardian ad litem, or both.
  2. If the petition for modification alleges a significant change in the capacity of the ward, it must be supported either by the affidavits of two persons who have knowledge of the ward, one of whom may be the petitioner, or of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, setting forth the supporting facts and determinations. If, after reviewing the petition and the affidavits, the court determines that there is no probable cause to believe that there has been a significant change in the capacity of the ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall order that an evaluation be conducted, in accordance with the provisions of subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that there has been a significant change in the capacity of the ward, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing, with notice as the court deems appropriate.
  3. If the petition for modification does not allege a significant change in the capacity of the ward, the court in its discretion may modify the guardianship upon a showing that the modification is in the ward’s best interest; provided, however, that the court may order compliance with any of the provisions of subsection (b) of this Code section prior to granting the petition for modification.
  4. In any proceeding under this Code section that would expand or increase the powers of the guardian or further restrict the powers of the ward, the burden is on the petitioner to show by clear and convincing evidence that the modification is in the ward’s best interest. In any proceeding under this Code section that would restrict the powers of the guardian or restore powers to the ward, the burden is on the petitioner to show by a preponderance of the evidence that the modification is in the ward’s best interest.
  5. No petition for modification shall be allowed by the court within two years after the denial or dismissal on the merits of a petition for substantially the same modification unless the petitioner shows a significant change in the condition or circumstances of the ward.

History. — Code 1981, § 29-4-41 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2011, p. 551, § 1/SB 134.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-9 are included in the annotations for this Code section.

Petition premised on former O.C.G.A. § 29-5-9(b) that merely set forth facts concerning the state of the ward’s health and finances but did not evidence a significant change in the extent of the ward’s incapacity or circumstances since the appointment of the guardian was properly dismissed without conducting an evidentiary hearing. In re Pitts, 219 Ga. App. 15 , 463 S.E.2d 550 (1995) (decided under former O.C.G.A. § 29-5-9).

Medical evidence. —

The admission of medical evidence which was used in a prior proceeding was not barred by former O.C.G.A. § 29-5-9(b). In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999) (decided under former O.C.G.A. § 29-5-9).

The trial court did not err in admitting the examining doctor’s testimony even though the ward’s attorneys were not permitted in the room during the ward’s evaluation. In re Vincent, 240 Ga. App. 876 , 525 S.E.2d 409 (1999) (decided under former O.C.G.A. § 29-5-9).

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), cert. denied, No. S15C0662, 2015 Ga. LEXIS 206 (Ga. Mar. 30, 2015).

RESEARCH REFERENCES

C.J.S. —

57 C.J.S., Mental Health, § 180 et seq.

ALR. —

Jurisdiction of court after adjudication of restoration to competency, as regards claims against former incompetent, 128 A.L.R. 1386 .

29-4-42. Termination of guardianship; required evidence; burden of proof; return of property.

  1. Upon the petition of any interested person, including the ward, or upon the court’s own motion, and upon a proper showing that the need for a guardianship is ended, the court may terminate the guardianship and restore all personal and property rights to the ward. Except for good cause shown, the court shall order that notice of the petition be given, in whatever form the court deems appropriate, to the ward, the guardian, the ward’s legal counsel, if any, and the ward’s conservator, if any. The court shall appoint legal counsel for the ward and may, in its discretion, appoint a guardian ad litem.
  2. A petition for termination must be supported either by the affidavits of two persons who have knowledge of the ward, one of whom may be the petitioner, or of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker, setting forth the supporting facts and determinations. If, after reviewing the petition and the affidavits, the court determines that there is no probable cause to believe that the guardianship should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall order that an evaluation be conducted, in accordance with the provisions of subsection (d) of Code Section 29-4-11. If, after reviewing the evaluation report, the court finds that there is no probable cause to believe that the guardianship should be terminated, the court shall dismiss the petition. If the petition is not dismissed, the court shall schedule a hearing, with such notice as the court deems appropriate.
  3. In any proceeding under this Code section, the burden is on the petitioner to show by a preponderance of the evidence that there is no longer a need for the guardianship.
  4. No petition for termination of a guardianship shall be allowed by the court within two years after the denial or dismissal on the merits of a petition for termination of the guardianship unless the petitioner shows a significant change in the condition or circumstances of the ward.
  5. The death of the ward automatically terminates the guardianship, except as otherwise provided in Code Section 29-4-43.
  6. Upon termination of the guardianship, the guardian shall deliver any money or property to the ward or, if a conservator has been appointed for the ward, to that conservator or, if the ward is deceased, to the ward’s personal representative.

History. — Code 1981, § 29-4-42 , enacted by Ga. L. 2004, p. 161, § 1.

JUDICIAL DECISIONS

Probable cause hearing. —

Probate court should have conducted a probable cause hearing on the petition to terminate guardianship pursuant to O.C.G.A. §§ 29-4-42(b) and 29-5-72(b) as there was conflicting evidence regarding the ward’s capacity to make or communicate decisions by a psychologist and a social worker. In re Loftus, 331 Ga. App. 329 , 771 S.E.2d 38 (2015).

RESEARCH REFERENCES

C.J.S. —

57 C.J.S., Mental Health, § 180 et seq.

ALR. —

Jurisdiction of court after adjudication of restoration to competency, as regards claims against former incompetent, 128 A.L.R. 1386 .

29-4-43. Petition of guardian for dismissal; order of dismissal.

  1. Upon the termination of the guardianship or the resignation of the guardian, the guardian may petition the court for an order dismissing the guardian from office. The petition shall include a final status report to the court which covers the period of time from the latest annual status report filed by the guardian. The final status report shall contain the information required for annual status reports and shall otherwise comply with the provisions of Code Section 29-4-22. Notice shall be published one time in the newspaper in which sheriff’s advertisements are published in the county in which the petition is filed and shall state that any objection must be made in writing and shall designate the date on or before which objections must be filed in the court, which shall not be less than 30 days from the date of publication. The court shall examine any objections filed.
  2. If no objection is filed or if, upon hearing any objection, the court is satisfied that the order dismissing the guardian from office is appropriate, the court shall enter an order dismissing the guardian from office. An order dismissing the guardian shall not bar an action against the guardian.

History. — Code 1981, § 29-4-43 , enacted by Ga. L. 2004, p. 161, § 1.

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) (decided under former Code 1882, § 1849); Poullain v. Poullain, 76 Ga. 420 , 4 S.E. 92 (1886) (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. —

Where 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), cert. denied, No. S97C1971, 1998 Ga. LEXIS 126 (Ga. Jan. 5, 1998) (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).

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.

Article 6 Alternative or Successor Guardians

29-4-50. Resignation of guardian; required showing; alternative guardian; individuals entitled to notice; hearing.

  1. A guardian or the duly authorized guardian, conservator, or attorney in fact of a guardian, acting on behalf of the guardian, may resign upon petition to the court, showing to the satisfaction of the court that:
    1. The guardian is unable to continue serving due to age, illness, infirmity, or other good cause;
    2. Greater burdens have devolved upon the office of guardian than those that were originally contemplated or should have been contemplated when the guardian was qualified and the additional burdens work a hardship upon the guardian;
    3. Disagreement exists between the ward and the guardian or between the guardian and the conservator in respect of the guardian’s care of the ward, which disagreement and conflict appear to be detrimental to the ward;
    4. The resignation of the guardian will result in or permit substantial financial benefit to the ward; or
    5. The resignation would not be disadvantageous to the ward.
  2. The petition for resignation shall include the name of a suitable person who is willing to accept the guardianship.
  3. The court shall appoint legal counsel for the ward and personal service of the petition for resignation shall be made upon the ward and the ward’s legal counsel. Service shall be made by first-class mail to the conservator of the ward, if any, and to the following persons whose whereabouts are known and who must be persons other than the resigning guardian or the proposed successor guardian:
    1. The spouse of the ward; and
    2. All adult children of the ward; or
    3. If there is no adult child, then at least two adults in the following order of priority:
      1. Lineal descendants of the ward;
      2. Parents and siblings of the ward; and
      3. Friends of the ward.
  4. If, after such hearing as the court deems appropriate, the court is satisfied that the petition for the resignation of the guardian and the appointment of the successor guardian should be granted, the court shall enter an order appointing the successor guardian in accordance with the provisions of Code Section 29-4-61 and accepting the resignation, subject to the resigning guardian turning over to the successor guardian or conservator all property of the ward held by the guardian.

History. — Code 1981, § 29-4-50 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

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.

29-4-51. Appointment of successor guardian; notice to interested individuals; hearing; order.

  1. In the event of the death of a guardian, and upon the petition of an interested person or on the court’s own motion, the court shall appoint a successor guardian. The court shall appoint legal counsel for the ward and personal service of the petition shall be made upon the ward and the ward’s legal counsel. Notice shall be given by first-class mail to the conservator of the ward, if any, the personal representative of the deceased guardian, if any, and to the following persons whose whereabouts are known and who must be persons other than the proposed successor guardian:
    1. The spouse of the ward; and
    2. All adult children of the ward; or
    3. If there is no adult child, then at least two adults in the following order of priority:
      1. Lineal descendants of the ward;
      2. Parents and siblings of the ward; and
      3. Friends of the ward.
  2. After such hearing as the court deems appropriate, the court shall enter an order appointing a successor guardian in accordance with the provisions of Code Section 29-4-61, requiring the personal representative of the deceased guardian to turn over to the successor guardian all property of the ward held by the guardian.

History. — Code 1981, § 29-4-51 , enacted by Ga. L. 2004, p. 161, § 1.

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 .

29-4-52. Revocation or suspension of guardianship; investigation; impact on other proceedings.

  1. Upon the petition of any interested person or whenever it appears to the court that good cause may exist to revoke or suspend the letters of a guardian or to impose sanctions, the court shall cite the guardian to answer the charge. The court shall investigate the allegations and may require such accounting as the court deems appropriate. The court may appoint a temporary substitute guardian for the ward during the investigation.
  2. Upon investigation, the court may, in the court’s discretion:
    1. Revoke or suspend the guardian’s letters;
    2. Require additional security;
    3. Reduce or deny compensation to the guardian or impose any other sanction or sanctions as the court deems appropriate; and
    4. Issue any other order as in the court’s judgment is appropriate under the circumstances of the case.
  3. The revocation or suspension of letters of guardianship shall not abate any action pending for or against the guardian. The successor guardian shall be made a party to the action against the guardian in the manner provided in Code Section 9-11-25.

History. — Code 1981, § 29-4-52 , enacted by Ga. L. 2004, p. 161, § 1.

Code Commission notes. —

Pursuant to Code Section 28-9-5, in 2004, “the guardian. The” was substituted for “the guardian The” in subsection (c).

29-4-53. Breach of fiduciary duty by guardian.

  1. If a guardian commits a breach of fiduciary duty or threatens to commit a breach of fiduciary duty, a ward or an interested person on behalf of the ward shall have a cause of action as appropriate to:
    1. Recover damages;
    2. Compel performance of the guardian’s duties;
    3. Enjoin the commission of a breach of fiduciary duty; or
    4. Compel the redress of a breach of fiduciary duty by payment of money or otherwise.
  2. When the ward’s assets are misapplied and can be traced into the hands of persons who have notice of the misapplication, a trust shall attach to the assets.
  3. The provision of remedies for breach of fiduciary duty by this Code section does not prevent resort to any other appropriate remedy provided by statute or common law.

History. — Code 1981, § 29-4-53 , enacted by Ga. L. 2004, p. 161, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1868, § 1807, 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.

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).

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).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, §§ 162 et seq., 205 et seq.

C.J.S. —

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

ALR. —

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 .

29-4-54. Statute of limitations.

All actions against a guardian, except on the guardian’s bond, shall be brought within six years of the termination of the guardianship of the ward, except as provided in Code Section 9-3-90.

History. — Code 1981, § 29-4-54 , enacted by Ga. L. 2004, p. 161, § 1.

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, §§ 169, 197.

Article 7 Temporary Substitute Guardians

29-4-60. Appointment of temporary substitute guardian; period of service; service on ward; removal.

  1. Upon its own motion or on the petition of any interested party, including the ward, the court may appoint a temporary substitute guardian for a ward if it appears to the court that the best interest of the ward requires immediate action.
  2. The temporary substitute guardian shall be appointed for a specified period not to exceed 120 days.
  3. The court shall appoint as temporary substitute guardian an appropriate individual who shall serve the best interest of the ward.
  4. Except as otherwise ordered by the court, a temporary substitute guardian has the powers set forth in the order of appointment. The authority of the previously appointed guardian is suspended for as long as the temporary substitute guardian has authority.
  5. Notice of the appointment of a temporary substitute guardian shall be served personally on the ward. Notice of the appointment shall be served personally on the previously appointed guardian at the last address provided by that guardian to the court. Notice of the appointment shall be mailed by first-class mail to the ward’s conservator, if any.
  6. The court may remove the temporary substitute guardian at any time. A temporary substitute guardian shall make any report the court requires. In all other respects, the provisions of this chapter apply to the temporary substitute guardian.

History. — Code 1981, § 29-4-60 , enacted by Ga. L. 2004, p. 161, § 1.

29-4-61. Appointment of successor guardian and legal counsel; notice to interested parties; hearing.

  1. The court shall appoint a successor guardian upon the resignation, death, or revocation of the letters of the guardian if the appointment of a successor guardian is in the best interest of the ward. The court shall select the successor guardian in the manner provided in Code Section 29-4-3.
  2. The court shall appoint legal counsel for the ward. In the event of the resignation or death of the guardian, notice of the proceeding for appointment of a successor guardian shall be given as provided in Code Sections 29-4-50 and 29-4-51. In all other cases, notice of the proceeding for appointment of a successor guardian shall be served personally on the ward and the ward’s legal counsel. Notice shall be made by first-class mail to the conservator of the ward, if any, and to the following persons whose whereabouts are known and who must be persons other than the proposed successor guardian:
    1. The spouse of the ward; and
    2. All adult children of the ward; or
    3. If there is no adult child, then at least two adults in the following order of priority:
      1. Lineal descendants of the ward;
      2. Parents and siblings of the ward; and
      3. Friends of the ward.
  3. After a hearing which the court deems appropriate, the court shall enter an order appointing the successor guardian.

History. — Code 1981, § 29-4-61 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 11/HB 70.

The 2019 amendment, effective January 1, 2020, substituted “29-4-3” for “29-4-11” at the end of the second sentence of subsection (a).

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, §§ 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.

29-4-62. Delivery of property and final report from predecessor guardian.

Upon the appointment of a successor guardian, the predecessor guardian or the personal representative of a deceased predecessor guardian shall deliver to the successor guardian all property of the ward held by the guardian and shall submit a final status report covering the period since the guardian’s last status report.

History. — Code 1981, § 29-4-62 , enacted by Ga. L. 2004, p. 161, § 1.

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.

Article 8 Appellate Proceedings

29-4-70. Right of ward to appeal; procedure; appointment of emergency guardian.

  1. Except as provided in Article 6 of Chapter 9 of Title 15, the ward, individually or by the ward’s legal counsel, representative, or guardian ad litem, or the petitioner may appeal any final order of the court to the superior court in the county in which the proceedings were held. The appeal shall be in the same manner as other appeals from the probate court to the superior court but shall be heard as expeditiously as possible. The appeal shall be de novo unless the parties by agreement specifically limit the issues. The ward shall retain the right to counsel or to have counsel appointed; provided, however, that if counsel was appointed by the probate court, the appointment shall continue on appeal to the superior court. The burden of proof shall be upon the petitioner and the standard used by the court in reaching its decision shall be clear and convincing evidence.
  2. All rights of appeal from the superior court shall be as provided by law.
  3. The filing of an appeal to the superior court from the judgment of the probate court shall act as a supersedeas.
  4. Pending any appeal, the superior court or a probate court that is described in paragraph (2) of Code Section 15-9-120 may appoint an emergency guardian with such powers and duties as are described in Code Section 29-4-16; provided, however, that an emergency guardian may be appointed only upon the filing of an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker setting forth the existence of the emergency circumstances described in subsection (d) of Code Section 29-4-14 and after a hearing at which other evidence may be presented. The appointment of an emergency guardian is not appealable.

History. — Code 1981, § 29-4-70 , enacted by Ga. L. 2004, p. 161, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-11 are included in the annotations for this Code section.

Standing to appeal. —

After 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), cert. denied, No. S96C0020, 1995 Ga. LEXIS 1226 (Ga. Dec. 1, 1995) (decided under former O.C.G.A. § 29-5-11 ).

OPINIONS OF THE ATTORNEY GENERAL

Editor’s notes. — In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-5-11 are included in the annotations for this Code section.

Authority to appoint emergency guardian pending appeal. — Under former O.C.G.A. § 29-5-11(d) , the probate courts which were authorized to hold jury trials under Ga. L. 1986, p. 982, would not be authorized to appoint an emergency guardian pending appeal. 1986 Op. Atty Gen. No. U86-18 (decided under former O.C.G.A. § 29-5-11 ).

Payment of costs upon appeal of emergency orders. — An appeal from those emergency guardianship orders which can be considered “final orders” will act as supersedeas upon payment of the costs by the appellant. 1986 Op. Atty Gen. No. U86-18 (decided under former O.C.G.A. § 29-5-11 ).

Article 9 Jurisdiction

PART 1 General Provisions

29-4-80. Removal to jurisdiction where ward resides; appointment of guardian ad litem; certification and transfer of records; scope of jurisdiction.

  1. A guardian may petition to remove the guardianship to the jurisdiction of the court of the county in this state in which the ward resides.
  2. Upon the filing of a petition to remove the guardianship to another county in this state, the court shall appoint a guardian ad litem for the ward. The court of the county in which the guardian was appointed shall grant the petition for removal only if the court determines that the removal is in the best interest of the ward.
  3. Before the removal of the guardianship to another county in this state, the guardian shall file with the court of the county to which the guardianship is to be removed certified copies of all the records pertaining to the guardianship.
  4. Following removal of a guardianship to another county in this state, the court of that county shall have the same jurisdiction over the guardian as if the guardian had been first appointed in that county, and every case growing out of or affecting the guardianship shall be heard and tried only in the county to which the guardianship has been removed.
  5. The court in which an action or proceeding is pending or which has issued an order for a settlement of accounts, removal, or sanction of a guardian shall retain jurisdiction of such matters even though the guardianship has been removed to another county.

History. — Code 1981, § 29-4-80 , enacted by Ga. L. 2004, p. 161, § 1.

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under 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).

RESEARCH REFERENCES

ALR. —

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

PART 2 Procedure

29-4-85 through 29-4-88.

Reserved. Repealed by Ga. L. 2016, p. 563, § 2/HB 954, effective July 1, 2016.

Editor’s notes. —

This part was based on Code 1981, §§ 29-4-85 through 29-4-88, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

PART 3 Transfer of Guardianship

29-4-90 through 29-4-94.

Reserved. Repealed by Ga. L. 2016, p. 563, § 2/HB 954, effective July 1, 2016.

Editor’s notes. —

This part was based on Code 1981, §§ 29-4-90 through 29-4-98 , enacted by Ga. L. 2004, p. 161, § 1.

PART 4 Rights and Responsibilities of Foreign Guardians

RESEARCH REFERENCES

C.J.S. —

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

29-4-95. “Foreign guardian” defined; sale of ward’s property.

  1. For purposes of this part, a “foreign guardian” is a guardian or other person who has been given responsibility by a court of competent jurisdiction in another state or territory governed by the Constitution of the United States for the care of an incapacitated adult referred to as the “ward” and whose guardianship has not been transferred to and accepted in this state pursuant to the provisions of Article 3 of Chapter 11 of this title.
  2. Any foreign guardian of a ward who resides in any other state and who is authorized to sell and convey property of the ward may sell property of the ward which is in this state, under the rules and regulations prescribed for the sale of real estate by conservators of this state, provided that the foreign guardian must file and have recorded in the court or other proper court, at the time of petitioning for sale, an authenticated copy of the letters of appointment and must also file with the court or other proper authority bond with good and sufficient security in double the value of the property to be sold for the faithful execution of the guardianship as provided by law.

History. — Code 1981, § 29-4-95 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2016, p. 563, § 4/HB 954.

The 2016 amendment, effective July 1, 2016, substituted “Article 3 of Chapter 11 of this title” for “Part 2 of this article” at the end of subsection (a).

RESEARCH REFERENCES

C.J.S. —

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

29-4-96. Power to recover property.

A foreign guardian may institute an action in any court in this state to enforce any right or to recover any property belonging to the ward or accruing to the foreign guardian as such.

History. — Code 1981, § 29-4-96 , enacted by Ga. L. 2004, p. 161, § 1.

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).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

39 C.J.S., Guardian and Ward, § 187 et seq.

ALR. —

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

29-4-97. Required filings with clerk of court.

Pending an action brought by a foreign guardian pursuant to Code Section 29-4-96, an authenticated copy of the letters of guardianship shall be filed with the clerk of the court to become a part of the record, if the case is pending in a court of record, or filed with the papers if the action is a summary proceeding.

History. — Code 1981, § 29-4-97 , enacted by Ga. L. 2004, p. 161, § 1.

29-4-98. Submission to jurisdiction; registration of guardianship order.

  1. A foreign guardian submits personally to the jurisdiction of the courts of this state in any proceeding relating to the guardianship by:
    1. Receiving payment of money or taking delivery of personal property in this state belonging to the ward;
    2. Doing any act as a guardian in this state that would have given this state jurisdiction over the actor as an individual; or
    3. Registering the guardianship order in this state pursuant to Code Section 29-11-30.
  2. With respect to a guardianship order from another state that has been registered with and recorded by a court of this state under Code Section 29-11-30, in addition to any action such court of this state may take under this part or under subsection (b) of Code Section 29-11-32, such court of this state may communicate with the appointing court in such other state under subsection (a) of Code Section 29-11-4 to inform such appointing court of any proceeding relating to the guardianship initiated in this state under subsection (a) of this Code section, stating the reasons therefor.

History. — Code 1981, § 29-4-98 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 12/HB 70.

The 2019 amendment, effective January 1, 2020, designated the existing provisions of this Code section as subsection (a); deleted “or” at the end of paragraph (a)(1); substituted “; or” for a period at the end of paragraph (a)(2); added paragraph (a)(3); and added subsection (b).

CHAPTER 5 Conservators of Adults

Cross references. —

Protective services for abused, neglected, or exploited disabled adults, § 30-5-1 et seq.

Appointment of guardian for incompetent adult for purposes of administering workers’ compensation benefits to which such incompetent adult is entitled, § 34-9-226 .

Appointment of representatives and guardians ad litem for persons undergoing treatment for mental illness, mental retardation, alcoholism, and other disabilities, §§ 37-3-147 , 37-4-107 , 37-7-147 .

Rights and privileges of patients and their representatives, T. 37, C. 3, Art. 6.

Editor’s notes. —

Ga. L. 2004, p. 161, § 16, not codified by the General Assembly, provides, in part, that: “all appointments of guardians of the person or property made pursuant to former Title 29 shall continue in effect and shall thereafter be governed by the provisions of this Act.”

Law reviews. —

For article, “The Georgia Law of Insanity,” see 3 Ga. B. J. 28 (1941).

For article, “Medical Decision-Making in Georgia,” see 10 Ga. St. B.J. 50 (2005).

For note on 1995 amendments of sections in this chapter, see 12 Ga. St. U.L. Rev. 216 (1995).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, decisions under former Code 1933, Ch. 49-6, as it read prior to revision by Ga. L. 1980, p. 1661, and former T. 29, C. 5 are included in the annotations for this Code section.

Joint tenancy not terminated by tenant’s incapacity. —

Joint tenancies in bank and stock investment accounts and in real property did not terminate as a matter of law when one of the joint tenants was declared incapacitated and a guardian was appointed for that person and for the property. A guardian, unlike a trustee, has no beneficial title in the ward’s estate, but is merely a custodian or manager. Moore v. Self, 222 Ga. App. 71 , 473 S.E.2d 507 (1996) (decided under former O.C.G.A. Ch. 5, T. 29).

Former Chapters 49-6 and 88-5 of the 1933 Code (former O.C.G.A. Ch. 5, T. 29 and Ch. 3, T. 37) were meant to be read together for procedural purposes. Kiker v. Kiker, 126 Ga. App. 39 , 189 S.E.2d 880 (1972) (decided under former Code 1933, Ch. 49-6).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, § 21 et seq.41 Am. Jur. 2d, Mentally Impaired Person, §§ 42, 43, 173 et seq.

Am. Jur. Trials. —

138 Am. Jur. Trials, Guardianships, § 6.

ALR. —

Showing as to mental condition which will entitle one restrained on ground of insanity to release, 19 A.L.R. 715 .

Constitutionality of statute making physical disability ground for appointment of guardian of person or property, 30 A.L.R. 1381 .

Liability of insane person for tort, 51 A.L.R. 833 ; 89 A.L.R. 476 .

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

Liability of incompetent’s estate for care and maintenance furnished by public institution or hospital before incompetent’s acquisition of any estate or property, 33 A.L.R.2d 1257.

Power of guardian, committee, or trustee of mental incompetent, after latter’s death, to pay debts and obligations, 60 A.L.R.2d 963.

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

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.

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

Article 1 Conservators

29-5-1. Conservator for adults; best interest of the adult; no presumption of need for conservator; objective of conservatorship.

  1. The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.
  2. No conservator, except a conservator appointed under paragraph (2) of subsection (a) of Code Section 29-11-13 or a conservator for the estate of an individual who is missing or who is believed to be dead, shall be appointed for any adult except pursuant to the procedures of this chapter.
  3. No conservator shall be appointed for an adult unless the appointment is in the best interest of the adult.
  4. No conservator shall be appointed for an adult within two years after the denial or dismissal on the merits of a petition for the appointment of a conservator for that adult unless the petitioner shows a significant change in the condition or circumstances of the adult.
    1. No adult shall be presumed to be in need of a conservator unless:
      1. He or she has been adjudicated to be in need of a conservator pursuant to this chapter; or
      2. The court has recognized another state’s determination of a protected person’s incapacity and the appointment of a conservator as provided in subsection (g) of Code Section 29-11-21.
    2. An adult shall not be presumed to be in need of a conservator solely because of a finding of criminal insanity or incompetence to stand trial or a finding of a need for treatment or services pursuant to:
      1. Code Section 37-1-1;
      2. Code Sections 37-3-1 through 37-3-6;
      3. Articles 2 through 6 of Chapter 3 of Title 37;
      4. Code Sections 37-4-1 through 37-4-3 and 37-4-5 through 37-4-8;
      5. Articles 2 through 5 of Chapter 4 of Title 37;
      6. Code Section 37-5-3;
      7. Code Sections 37-7-1, 37-7-2, and 37-7-4 through 37-7-7; and
      8. Articles 2 through 6 of Chapter 7 of Title 37.
  5. All conservatorships ordered pursuant to this chapter shall be designed to encourage the development of maximum self-reliance and independence in the adult and shall be ordered only to the extent necessitated by the adult’s actual and adaptive limitations after a determination that less restrictive alternatives to the conservatorship are not available or appropriate.

History. — Code 1981, § 29-5-1 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 13/HB 70.

The 2019 amendment, effective January 1, 2020, inserted “a conservator appointed under paragraph (2) of subsection (a) of Code Section 29-11-13 or” in the middle of subsection (b) and substituted the present provisions of paragraph (e)(1) for the former provisions, which read: “No adult shall be presumed to be in need of a conservator unless adjudicated to be in need of a conservator pursuant to this chapter.”

Cross references. —

Appointment of guardian ad litem for incompetent person not otherwise represented in an action, § 9-11-17 .

Domicile of persons of full age placed under power of guardian, § 19-2-5 .

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017).

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 and 29-5-7 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).

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), No. R02-50780-PWB, No. R02-50780-PWB, No. 08-4069, 2009 Bankr. LEXIS 801 (Bankr. N.D. Ga. Mar. 3, 2009).

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).

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).

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).

Appointment of county conservator upheld. —

Seeking to avoid the recovery of Medicaid payments from their mother’s estate, when the daughters opted their mother out of Medicaid and planned to sell some of the mother’s property, those decisions were properly held to not be in the mother’s best interest and supported the appointment of the county conservator in said capacity. Cruver v. Mitchell, 289 Ga. App. 145 , 656 S.E.2d 269 (2008).

Findings of parent’s inability to manage property were supported. —

Given a parent’s gravely-impaired judgment, which combined with a physical frailty and impaired vision, made the parent vulnerable to exploitation by a new person living with the parent, the probate court properly concluded that the parent lacked sufficient understanding to make significant responsible decisions concerning the management of the parent’s property; moreover, because the parent chose not to include the transcript of the evidence in the appellate record, and, as any pre-trial ruling on the parent’s capabilities was, after a trial determining the matter, harmless if not moot, the probate court’s ruling was upheld. Yetman v. Walsh, 282 Ga. App. 499 , 639 S.E.2d 491 (2006).

Finding of some evidence of parent’s incapacity did not prove undue influence as matter of law. —

The fact that a probate court had found some evidence of a parent’s incapacity under former O.C.G.A. § 29-5-6 (repealed) and had appointed a psychologist to evaluate the parent before the parent deeded real property to one of the adult children did not mean that there was undue influence as a matter of law; at that stage of the guardianship proceedings, the incapacity of the parent was an unproven proposition, not a proven fact. Chesser v. Chesser, 284 Ga. App. 381 , 643 S.E.2d 764 (2007), cert. denied, No. S07C1110, 2007 Ga. LEXIS 493 (Ga. June 25, 2007).

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).

Probate court’s jurisdiction to approve the settlement of a malpractice claim and to protect the best interests of the incapacitated ward conferred upon that court the authority to require that the ward’s attorneys pay into the registry of court such settlement funds as the attorneys disbursed to themselves, and to hold them in contempt for their refusal to do so. Gnann v. Woodall, 270 Ga. 516 , 511 S.E.2d 188 (1999) (decided under former O.C.G.A. § 29-5-7).

Appointment of conservator proper. —

Trial court did not err in granting a petition for the appointment of a conservator to manage a ward’s property and financial affairs because the Department of Human Services carried the Department’s burden of proving under O.C.G.A. § 29-5-1(a) that the ward lacked sufficient capacity to make or communicate significant responsible decisions concerning the management of the ward’s property and financial affairs; pursuant to O.C.G.A. § 29-5-12(d)(4), the evidence was sufficient for the probate court to find by clear and convincing evidence that the ward was in need of a conservator to protect the ward’s assets because the ward suffered from cognitive loss that affected the ward’s judgment with respect to financial affairs, and the ward’s impaired judgment led the ward to incur significant financial losses as the ward repeatedly fell victim to fraud. In re Cochran, 314 Ga. App. 188 , 723 S.E.2d 490 (2012).

OPINIONS OF THE ATTORNEY GENERAL

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 Ga. Op. Att'y Gen. 88 (decided under former Code 1933, § 49-601).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 42 et seq., 45, 63, 151, 450.

C.J.S. —

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

ALR. —

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.

29-5-2. Qualifications of conservator of adult.

No person may be appointed or continue to serve as conservator of the estate of an adult who:

  1. Is a minor, a ward, or a protected person;
  2. Who has a conflict of interest with the adult unless the court determines that the conflict of interest is insubstantial or that the appointment clearly would be in the adult’s best interest; or
  3. Is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the adult is receiving care, unless related to the adult by blood, marriage, or adoption.

History. — Code 1981, § 29-5-2 , enacted by Ga. L. 2004, p. 161, § 1.

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Court’s order amounted to an abuse of discretion requiring remand as the order failed to give the mother a reasonable opportunity to meet the court’s requirements for bond, before passing the mother over in favor of the county guardian, and implicitly found that the mother was unavailable to serve as guardian. In re Estate of Taylor, 270 Ga. App. 807 , 608 S.E.2d 299 (2004).

RESEARCH REFERENCES

Am. Jur. 2d. —

39 Am. Jur. 2d, Guardian and Ward, §§ 24 et seq., 46 et seq.

C.J.S. —

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

29-5-3. (See Editor’s notes.) Order of preference in selecting conservator; nomination of individual to serve as conservator; requirements of nomination.

  1. The court shall appoint as conservator that person who shall best serve the interest of the adult taking into consideration the order of preferences set forth in this Code section. The court may disregard a person who has preference and appoint a person who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.
  2. Persons who are eligible and not disqualified have preference in the following order:
    1. The person last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;
    2. The spouse of the adult or a person nominated by the adult’s spouse in accordance with the provisions of subsection (d) of this Code section;
    3. An adult child of the adult or a person nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;
    4. A parent of the adult or a person nominated by a parent of the adult in accordance with the provisions of subsection (c) of this Code section;
    5. A conservator appointed during the minority of the adult;
    6. A conservator previously appointed in Georgia or another state;
    7. A friend, relative, or any other person; or
    8. The county guardian.
  3. At any time prior to the appointment of a conservator, an adult may nominate in writing a person to serve as that adult’s conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference set forth in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section 31-36-5.
  4. At any time prior to the appointment of a conservator, a spouse, adult child, or parent of an adult may nominate in writing a person to serve as the adult’s conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.
  5. A writing nominating the conservator of an adult:
    1. Must contain an express nomination of the person who shall serve as conservator and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual’s presence; and
    2. May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

      A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders.

History. — Code 1981, § 29-5-3 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 12/SB 534; Ga. L. 2011, p. 752, § 29/HB 142.

Editor’s notes. — For application of this statute in 2020, see Executive Order 04.09.20.01.

History. — Code 1981, § 29-5-3 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 12/SB 534; Ga. L. 2011, p. 752, § 29/HB 142.

Editor’s notes. —

Former Code Section 31-36-5, referred to in subsection (c) of this Code section, was repealed by Ga. L. 2007, p. 133, § 3, effective July 1, 2007.

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders.

Law reviews. —

For article, “Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia’s Same Sex Spouses,” see 21 Ga. St. Bar. J. 9 (Oct. 2015).

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

Denial of appointment of guardian held erroneous. —

Because the probate court applied an incorrect analysis regarding the daughters’ request for guardianship in an action involving their mother, the request was improperly denied. Cruver v. Mitchell, 289 Ga. App. 145 , 656 S.E.2d 269 (2008).

Appointment of county conservator upheld. —

Seeking to avoid the recovery of Medicaid payments from their mother’s estate, when the daughters opted their mother out of Medicaid and planned to sell some of the mother’s property, those decisions were properly held to not be in the mother’s best interest and supported the appointment of the county conservator in said capacity. Cruver v. Mitchell, 289 Ga. App. 145 , 656 S.E.2d 269 (2008).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

Am. Jur. Pleading and Practice Forms. —

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 42 et seq., 45, 63, 151, 450.

C.J.S. —

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

29-5-4. Affidavit on property or value of estate; payment, transfer, or delivery pursuant to affidavit.

  1. Upon receiving an affidavit:
    1. That the total personal property of an incapacitated adult does not exceed $2,500.00 in value;
    2. That no conservator has been appointed for the incapacitated adult’s estate; and
    3. That the affiant is the spouse or that there is no spouse and the affiant is a relative having the responsibility of the support of the incapacitated adult,

      any person or corporation indebted to or holding personal property of the incapacitated adult shall be authorized to pay the amount of the indebtedness or deliver the personal property to the affiant. In the same manner and upon like proof, any person or corporation having the responsibility for the issuance or transfer of stocks, bonds, or other personal property shall be authorized to issue or transfer the stocks, bonds, or personal property to or in the name of the affiant. Upon payment, delivery, transfer, or issuance pursuant to the affidavit, the person or corporation shall be released to the same extent as if the payment, delivery, transfer, or issuance had been made to the legally qualified conservator of the incapacitated adult and shall not be required to see to the application or disposition of the personal property.

  2. The person making the affidavit and receiving the personal property shall be authorized to expend or otherwise dispose of the personal property for the benefit of the incapacitated adult in the person’s judgment as may be just and proper.

History. — Code 1981, § 29-5-4 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.

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 (Ga. Ct. App. Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2 ).

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), cert. denied, No. S06C1724, 2006 Ga. LEXIS 699 (Ga. Sept. 8, 2006).

RESEARCH REFERENCES

Am. Jur. 2d. —

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

C.J.S. —

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

Article 2 Petition for Appointed Conservator

29-5-10. Petition for appointment of conservator; requirements of petition.

  1. Any interested person, including the proposed ward, may file a petition for the appointment of a conservator. Such petition shall be filed in the court of the county in which:
    1. The proposed ward is domiciled;
    2. The proposed ward is found; provided, however, that if the court of the county where the proposed ward is found determines that the proposed ward was removed to such county solely for the purposes of filing a petition for the appointment of a conservator and that such court acquired jurisdiction to appoint a conservator because of unjustifiable conduct, such court may take any action authorized by Code Section 29-11-16; or
    3. Jurisdiction is otherwise proper under Code Section 29-11-12.
  2. The petition for appointment of a conservator shall set forth:
    1. A statement of the facts upon which the court’s jurisdiction is based;
    2. The name, address, and county of domicile of the proposed ward, if known;
    3. The name, address, and county of domicile of the petitioner or petitioners and the petitioner’s relationship to the proposed ward, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as conservator and that person’s relationship to the proposed ward, if any;
    4. A statement of the reasons the conservatorship is sought, including the facts which support the claim of the need for a conservator;
    5. Any foreseeable limitations on the conservatorship;
    6. Whether, to the petitioner’s knowledge, there exists any power of attorney, trust, or other instrument that deals with the management of the property of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;
    7. A description of all known assets, income, other sources of funds, liabilities, and expenses of the proposed ward;
    8. The names and addresses of the following whose whereabouts are known:
      1. The spouse of the proposed ward; and
      2. All children of the proposed ward; or
      3. If there are no adult children, then at least two adults in the following order of priority:
        1. Lineal descendants of the proposed ward;
        2. Parents and siblings of the proposed ward; and
        3. Friends of the proposed ward;
    9. If known, the name and address of any person nominated to serve as conservator by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-5-3;
    10. If known, the name and address of any person nominated to serve as conservator by the proposed ward’s spouse, adult child, or parent, as described in paragraphs (2) through (4) of subsection (b) of Code Section 29-5-3;
    11. The name and address of any person nominated to serve as conservator by the petitioner;
    12. Whether any nominated conservator has consented or will consent to serve as conservator;
    13. If known, whether any nominated conservator is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the proposed ward is receiving care, and, if so, whether the nominated conservator is related to the proposed ward by blood, marriage, or adoption.
    14. Whether an emergency conservator has been appointed for the proposed ward or a petition for the appointment of an emergency conservator has been filed or is being filed;
    15. If known, a disclosure of any ownership or other financial interest that would cause any nominated conservator to have a conflict of interest with the proposed ward;
    16. A specific listing of any additional powers, as described in subsections (b) and (c) of Code Section 29-5-23, that are requested by the conservator and a statement of the circumstances which would justify the granting of additional powers;
    17. Whether a guardian or conservator has been appointed in another state or whether a petition for the appointment of a guardian or conservator is pending in another state;
    18. That to petitioner’s knowledge, there has been no petition for conservatorship denied or dismissed within two years by any court of this state or, if so, that there has been a significant change in the condition or circumstances of the individual, as shown by the accompanying affidavits or evaluation;
    19. Any state in which the proposed ward was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition or ending within the six months prior to the filing of the petition; and
    20. The reason for any omission in the petition for appointment of conservator in the event full particulars are lacking.
    1. The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that facility.
    2. Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based upon the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the management of the proposed ward’s property.
    3. In addition to stating the facts that support the claim of the need for a conservator, the affidavit shall state the foreseeable duration of the conservatorship and may set forth the affiant’s opinion as to any other limitations on the conservatorship.

History. — Code 1981, § 29-5-10 , enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2013, p. 884, § 2/HB 446; Ga. L. 2019, p. 693, § 14/HB 70.

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: “Any interested person or persons, including the proposed ward, may file a petition for the appointment of a conservator. The petition shall be filed in the court of the county in which the proposed ward is domiciled or is found, provided that the court of the county where the proposed ward is found shall not have jurisdiction to hear any conservatorship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing a petition for the appointment of a conservator.”

Law reviews. —

For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

Editor’s notes. —

In light of the similarity of the statutory provisions, certain 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. —