2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 3 - Conservators of Minors
Article 2 - Rights of Minor and Obligations of Conservator
§ 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.
2. 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.
3. 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.
4. 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.
5. 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.

(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.

- 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.

- 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).

- 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).

ANALYSIS

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

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 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).

- 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).

- 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).

- 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).

- 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); Sturgis v. Davis, 157 Ga. 352, 121 S.E. 318 (1924) (decided under former Civil Code 1910, § 3060);(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).

- 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).

- 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).

- 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).

- 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 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) (decided under former Code 1933, § 49-204).

- 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 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 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).

- 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).

- 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).

- 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, 52 L.R.A. 934 (1900) (decided under former Civil Code 1895, § 3432).

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

- 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).

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

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

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

- Former Code 1933, §§ 49-219 and 49-221 (former O.C.G.A. §§ 29-2-16 and29-2-18) 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 (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).

- 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) (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).

- 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).

- 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) (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).

- 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).

- 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 (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).

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

- 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 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).

- 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).

- 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).

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

Cited in Springer v. Oliver, 21 Ga. 517 (1857); Brown v. Wright, 39 Ga. 96 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Speer v. Tinsley, 55 Ga. 89 (1875); Wynn v. Bryce, 59 Ga. 529 (1877); Coffee v. Ragsdale, 112 Ga. 705, 37 S.E. 968 (1901); Furr v. Burns, 124 Ga. 742, 53 S.E. 201 (1906); Williams v. Smith, 128 Ga. 306, 57 S.E. 801 (1907); Rexford v. Bleckley, 131 Ga. 678, 63 S.E. 337 (1908); Beach v. Lott, 132 Ga. 70, 63 S.E. 627 (1909); Crawford v. Crawford, 139 Ga. 68, 76 S.E. 564 (1912); Walton v. Reid, 148 Ga. 176, 96 S.E. 214 (1918); Home Mixture Guano Co. v. Woolfolk, 148 Ga. 567, 97 S.E. 637 (1918); Nix v. Monroe, 36 Ga. App. 356, 136 S.E. 806 (1927); New York Life Ins. Co. v. Gilmore, 40 Ga. 431, 149 S.E. 799 (1929); Paulk v. Roberts, 42 Ga. App. 79, 155 S.E. 55 (1930); Mobley v. Phinizy, 42 Ga. App. 33, 155 S.E. 73 (1930); Citizens' & S. Nat'l Bank v. Clark, 172 Ga. 625, 158 S.E. 297 (1931); Georgia Power Co. v. Davis, 43 Ga. App. 791, 160 S.E. 690 (1931); Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933); Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935); Jernigan v. Radford, 182 Ga. 484, 185 S.E. 828 (1936); Moore v. Pittman, 185 Ga. 619, 196 S.E. 50 (1938); Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942); Brown v. Gibson, 203 Ga. 213, 46 S.E.2d 68 (1948); Humber v. Garrard, 80 Ga. App. 76, 55 S.E.2d 378 (1949); West v. Downer, 218 Ga. 235, 127 S.E.2d 359 (1962); Tucker v. Tucker, 221 Ga. 128, 143 S.E.2d 639 (1965); Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill, 113 Ga. App. 283, 148 S.E.2d 83 (1966); Seaboard Constr. Co. v. Clifton, 121 Ga. App. 247, 173 S.E.2d 436 (1970); Knight v. Lowery, 124 Ga. App. 172, 183 S.E.2d 221 (1971); Macris v. Laughlin Insulation Co., 124 Ga. App. 573, 185 S.E.2d 413 (1971); Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001).

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).

- 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); Banister v. Bagley, 56 Ga. App. 615, 193 S.E. 480 (1937) (decided under former Civil Code 1910, § 3060); Bailey v. McElroy, 61 Ga. App. 367, 6 S.E.2d 140 (1939);(decided under former Code 1933, § 49-202);(decided under former Code 1933, § 49-202).

- 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 and29-2-5) 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).

- 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).

- 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).

"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 (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" 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 (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).

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 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 (1938) (decided under former Code 1933, § 49-221).

RESEARCH REFERENCES

Am. Jur. 2d.

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

- 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.

- 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.