2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 4 - Guardians of Adults
Article 2 - Procedure for Appointment
§ 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.
4. 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.

(Code 1981, §29-4-12, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95.)

- 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).

- 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).

- 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 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) (decided under former O.C.G.A. § 29-5-6).

- 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) (decided under former O.C.G.A. § 29-5-6).

- 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).

- 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 (1947), disapproved by Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981) (decided under former Code 1933, § 49-604).

- 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); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974) (decided under former Code 1933, § 49-604);(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 (decided under former Code 1933, § 49-604).

- 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 and29-5-11; 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 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).

- 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, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-6).

- 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) (decided under former O.C.G.A. § 29-5-6).

Cited in Jones v. Jones, 191 Ga. App. 401, 381 S.E.2d 565 (1989); In re Vincent, 240 Ga. App. 876, 525 S.E.2d 409 (1999); 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 O.C.G.A. § 29-5-6 are included in the annotations for this Code section.

- 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. Att'y Gen. No. U86-8 (decided under former O.C.G.A. § 29-5-6).

- Probate court cannot name guardian for one who is perfectly rational but only suffers some physical incapacity. 1977 Op. Att'y Gen. No. U77-65 (decided under former law).

- 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. Att'y 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.

- 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.

- 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.