2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 4 - Guardians of Adults
Article 1 - General Provisions
§ 29-4-1. Prerequisite Findings Prior to Appointment of Guardian for Adult; Extent of Guardianship

Universal Citation: GA Code § 29-4-1 (2020)
  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.

(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), Bankr. (Bankr. N.D. Ga. Mar. 3, 2009).

Probate court vested with original, exclusive, and general jurisdiction.

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

May commit insane person present in county.

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

May appoint guardian for in-state land of nonresident insane person.

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

May authorize guardian to sell ward's land to pay debts.

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

Applicability of Code sections pertaining to guardians of minors.

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

Appointment of guardian does not mandate eligibility for commitment.

- One may be eligible to have guardian even if ineligible for admission as inmate of Milledgeville State Hospital. Tucker v. American Sur. Co., 78 Ga. App. 327, 50 S.E.2d 859 (1948) (decided under former Code 1933, § 49-601).

Evidence sufficient to appoint guardian and conservator.

- Order granting sons' petition for guardianship and conservatorship of their mother pursuant to O.C.G.A. §§ 29-4-1 and29-5-1(a) was proper because the evidence included, inter alia, the testimony of one of the sons as to his personal knowledge regarding his mother's physical problems, her refusal to either relocate or to hire a private care giver, and her failure to pay her bills; the evidence also included a social worker's evaluation which detailed the mother's erratic behavior and her refusal to pay her bills, which the trial court properly considered pursuant to O.C.G.A. § 29-5-12(d)(4). In re Cash, 298 Ga. App. 110, 679 S.E.2d 124 (2009).

Evidence sufficient to appoint father as guardian of adult autistic son.

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

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

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

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

Court cannot appoint guardian for one rational but arthritic.

- Probate court would have no authority to name guardian for one who is perfectly rational but is only afflicted with arthritis. 1960-61 Op. Att'y Gen. p. 88 (decided under former Code 1933, § 49-601).

RESEARCH REFERENCES

Am. Jur. 2d.

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

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

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

C.J.S.

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

ALR.

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

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

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

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