2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 3 - Conservators of Minors
Article 1 - Property
§ 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.

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

- 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).

- 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).

ANALYSIS

• General Consideration
• Ward's Right to Select

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 and29-4-8 are included in the annotations for this Code section.

- 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).

- 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).

§ 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).

- 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).

- 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).

- 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).

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

Cited in Nicholson v. Spencer, 11 Ga. 607 (1852); Perkins v. Attaway, 14 Ga. 27 (1853); Wood v. Crawford, 18 Ga. 526 (1855); McBain v. Wimbish, 27 Ga. 259 (1859); Beard v. Dean, 64 Ga. 258 (1879); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Price v. Matthews, 68 Ga. App. 510, 23 S.E.2d 535 (1942); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952); Sailors v. Spainhour, 98 Ga. App. 475, 106 S.E.2d 82 (1958); Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964); Mathis v. Sapp, 232 Ga. 620, 208 S.E.2d 446 (1974).

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.

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

RESEARCH REFERENCES

Am. Jur. 2d.

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

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

- 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.