2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 3 - Conservators of Minors
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.

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

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

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

- 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).

ANALYSIS

• General Consideration
• Rights of Natural Guardian
• Bond

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.

§ 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).

- 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).

- 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. 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).

- 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).

- 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, 2016 Ga. LEXIS 221 (Ga. 2016).

Cited in Southwestern R.R. v. Chapman, 46 Ga. 557 (1872); Lamar v. Harris, 117 Ga. 993, 44 S.E. 866 (1903); Fidelity & Deposit Co. v. Norwood, 38 Ga. App. 534, 144 S.E. 387 (1928); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Chapin v. Cummings, 191 Ga. 408, 12 S.E.2d 312 (1940); Walden v. Walden, 191 Ga. 182, 12 S.E.2d 345 (1940); King v. King, 203 Ga. 811, 48 S.E.2d 465 (1948); Faith v. Massengill, 104 Ga. App. 348, 121 S.E.2d 657 (1961); Kennison v. Lee, 217 Ga. 155, 121 S.E.2d 821 (1961); Ingle v. Rubenstein, 112 Ga. App. 767, 146 S.E.2d 367 (1965); Georgia Mut. Ins. Co. v. Nix, 113 Ga. App. 735, 149 S.E.2d 494 (1966); Summerour v. Summerour, 131 Ga. App. 519, 206 S.E.2d 535 (1974); Jordan v. Goff, 160 Ga. App. 636, 287 S.E.2d 640 (1981).

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).

- 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).

- 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, cert. denied, 187 Ga. App. 907, 369 S.E.2d 260 (1988) (decided under former O.C.G.A. § 29-4-2).

- 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).

- 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).

- 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.

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

- 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).

- Whereabouts of minor child would clearly seem to fall within area of parental or guardianship responsibility, and therefore, primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-102).

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

RESEARCH REFERENCES

Am. Jur. 2d.

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

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

- 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.