2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 5 - Conservators of Adults
Article 1 - Conservators
§ 29-5-1. Conservator for Adults; Best Interest of the Adult; No Presumption of Need for Conservator; Objective of Conservatorship

1. The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.
2. No conservator, except a conservator appointed under paragraph (2) of subsection (a) of Code Section 29-11-13 or a conservator for the estate of an individual who is missing or who is believed to be dead, shall be appointed for any adult except pursuant to the procedures of this chapter.
3. No conservator shall be appointed for an adult unless the appointment is in the best interest of the adult.
4. No conservator 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 conservator for that adult unless the petitioner shows a significant change in the condition or circumstances of the adult.
5. 1. No adult shall be presumed to be in need of a conservator unless:
      1. He or she has been adjudicated to be in need of a conservator pursuant to this chapter; or
      2. The court has recognized another state's determination of a protected person's incapacity and the appointment of a conservator as provided in subsection (g) of Code Section 29-11-21.
   2. An adult shall not be presumed to be in need of a conservator 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.
6. All conservatorships 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 conservatorship are not available or appropriate.

(Code 1981, §29-5-1, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2019, p. 693, § 13/HB 70.)

The 2019 amendment, effective January 1, 2020, inserted "a conservator appointed under paragraph (2) of subsection (a) of Code Section 29-11-13 or" 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 conservator unless adjudicated to be in need of a conservator pursuant to this chapter."

- 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.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). 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 and29-5-7 are included in the annotations for this Code section.

- 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).

- See Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 18 S.E.2d 57 (1941) (decided under former Code 1933, § 49-601).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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).

- Seeking to avoid the recovery of Medicaid payments from their mother's estate, when the daughters opted their mother out of Medicaid and planned to sell some of the mother's property, those decisions were properly held to not be in the mother's best interest and supported the appointment of the county conservator in said capacity. Cruver v. Mitchell, 289 Ga. App. 145, 656 S.E.2d 269 (2008).

- Given a parent's gravely-impaired judgment, which combined with a physical frailty and impaired vision, made the parent vulnerable to exploitation by a new person living with the parent, the probate court properly concluded that the parent lacked sufficient understanding to make significant responsible decisions concerning the management of the parent's property; moreover, because the parent chose not to include the transcript of the evidence in the appellate record, and, as any pre-trial ruling on the parent's capabilities was, after a trial determining the matter, harmless if not moot, the probate court's ruling was upheld. Yetman v. Walsh, 282 Ga. App. 499, 639 S.E.2d 491 (2006).

- The fact that a probate court had found some evidence of a parent's incapacity under former O.C.G.A. § 29-5-6 (repealed) and had appointed a psychologist to evaluate the parent before the parent deeded real property to one of the adult children did not mean that there was undue influence as a matter of law; at that stage of the guardianship proceedings, the incapacity of the parent was an unproven proposition, not a proven fact. Chesser v. Chesser, 284 Ga. App. 381, 643 S.E.2d 764, cert. denied, 2007 Ga. LEXIS 493 (Ga. 2007).

- The appointment of a guardian for adults who are incapacitated does not destroy the ward's right or ability to make a will. Pope v. Fields, 273 Ga. 6, 536 S.E.2d 740 (2000) (decided under former O.C.G.A. § 29-5-7).

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 the attorneys 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. § 29-5-7).

- Trial court did not err in granting a petition for the appointment of a conservator to manage a ward's property and financial affairs because the Department of Human Services carried the Department's burden of proving under O.C.G.A. § 29-5-1(a) that the ward lacked sufficient capacity to make or communicate significant responsible decisions concerning the management of the ward's property and financial affairs; pursuant to O.C.G.A. § 29-5-12(d)(4), the evidence was sufficient for the probate court to find by clear and convincing evidence that the ward was in need of a conservator to protect the ward's assets because the ward suffered from cognitive loss that affected the ward's judgment with respect to financial affairs, and the ward's impaired judgment led the ward to incur significant financial losses as the ward repeatedly fell victim to fraud. In re Cochran, 314 Ga. App. 188, 723 S.E.2d 490 (2012).

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); Heichelbech v. Evans, 798 F. Supp. 708 (M.D. Ga. 1992); 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); Anaya v. Coello, 279 Ga. App. 578, 632 S.E.2d 425 (2006).

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.

- 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., 39.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, §§ 9 et seq., 42 et seq., 45, 63, 151, 450.

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

- 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.