2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 5 - Conservators of Adults
Article 1 - Conservators
§ 29-5-3. (See Editor's notes.) Order of Preference in Selecting Conservator; Nomination of Individual to Serve as Conservator; Requirements of Nomination

1. The court shall appoint as conservator that person who shall best serve the interest of the adult taking into consideration the order of preferences set forth in this Code section. The court may disregard a person who has preference and appoint a person who has a lower preference or no preference; provided, however, that the court may disregard the preferences listed in paragraph (1) of subsection (b) of this Code section only upon good cause shown.
2. Persons who are eligible and not disqualified have preference in the following order:
   1. The person last nominated by the adult in accordance with the provisions of subsection (c) of this Code section;
   2. The spouse of the adult or a person nominated by the adult's spouse in accordance with the provisions of subsection (d) of this Code section;
   3. An adult child of the adult or a person nominated by an adult child of the adult in accordance with the provisions of subsection (d) of this Code section;
   4. A parent of the adult or a person nominated by a parent of the adult in accordance with the provisions of subsection (c) of this Code section;
   5. A conservator appointed during the minority of the adult;
   6. A conservator previously appointed in Georgia or another state;
   7. A friend, relative, or any other person; or
   8. The county guardian.
3. At any time prior to the appointment of a conservator, an adult may nominate in writing a person to serve as that adult's conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference set forth in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or the provisions of Code Section 31-36-5.
4. At any time prior to the appointment of a conservator, a spouse, adult child, or parent of an adult may nominate in writing a person to serve as the adult's conservator should the adult be judicially determined to be in need of a conservator, and that nomination shall be given the preference described in this Code section, provided that it is signed in accordance with the provisions of subsection (e) of this Code section or, if in a will, is executed in accordance with the provisions of Code Section 53-4-20.
5. A writing nominating the conservator of an adult:
   1. Must contain an express nomination of the person who shall serve as conservator and must be signed or acknowledged by the individual making the nomination in the presence of two witnesses who sign in the individual's presence; and
   2. May be revoked by the individual by obliteration, cancellation, or by a subsequent inconsistent writing, whether or not witnessed.

(Code 1981, §29-5-3, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2006, p. 805, § 12/SB 534; Ga. L. 2011, p. 752, § 29/HB 142.)

- Former Code Section 31-36-5, referred to in subsection (c) of this Code section, was repealed by Ga. L. 2007, p. 133, § 3, effective July 1, 2007.

For application of this statute in 2020, see Executive Order 04.09.20.01.

A listing of Executive Orders issued in 2020 can be found at https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders.

- For article, "Marriage, Death and Taxes: The Estate Planning Impact of Windsor and Obergefell on Georgia's Same Sex Spouses," see 21 Ga. St. Bar. J. 9 (Oct. 2015).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

- Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2(c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2).

- Because the probate court applied an incorrect analysis regarding the daughters' request for guardianship in an action involving their mother, the request was improperly denied. Cruver v. Mitchell, 289 Ga. App. 145, 656 S.E.2d 269 (2008).

- 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).

Cited in Twitty v. Akers, 218 Ga. App. 467, 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

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

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, § 135 et seq.