2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 5 - Conservators of Adults
Article 2 - Petition for Appointed Conservator
§ 29-5-10. Petition for Appointment of Conservator; Requirements of Petition

1. Any interested person, including the proposed ward, may file a petition for the appointment of a conservator. Such petition shall be filed in the court of the county in which:
   1. The proposed ward is domiciled;
   2. The proposed ward is found; provided, however, that if the court of the county where the proposed ward is found determines that the proposed ward was removed to such county solely for the purposes of filing a petition for the appointment of a conservator and that such court acquired jurisdiction to appoint a conservator because of unjustifiable conduct, such court may take any action authorized by Code Section 29-11-16; or
   3. Jurisdiction is otherwise proper under Code Section 29-11-12.
2. The petition for appointment of a conservator shall set forth:
   1. A statement of the facts upon which the court's jurisdiction is based;
   2. The name, address, and county of domicile of the proposed ward, if known;
   3. The name, address, and county of domicile of the petitioner or petitioners and the petitioner's relationship to the proposed ward, if any, and, if different from the petitioner, the name, address, and county of domicile of the person nominated by the petitioner to serve as conservator and that person's relationship to the proposed ward, if any;
   4. A statement of the reasons the conservatorship is sought, including the facts which support the claim of the need for a conservator;
   5. Any foreseeable limitations on the conservatorship;
   6. Whether, to the petitioner's knowledge, there exists any power of attorney, trust, or other instrument that deals with the management of the property of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;
   7. A description of all known assets, income, other sources of funds, liabilities, and expenses of the proposed ward;
   8. The names and addresses of the following whose whereabouts are known:
      1. The spouse of the proposed ward; and
      2. All children of the proposed ward; or
      3. If there are no adult children, then at least two adults in the following order of priority:
         1. Lineal descendants of the proposed ward;
         2. Parents and siblings of the proposed ward; and
         3. Friends of the proposed ward;
   9. If known, the name and address of any person nominated to serve as conservator by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-5-3;
   10. If known, the name and address of any person nominated to serve as conservator by the proposed ward's spouse, adult child, or parent, as described in paragraphs (2) through (4) of subsection (b) of Code Section 29-5-3;
   11. The name and address of any person nominated to serve as conservator by the petitioner;
   12. Whether any nominated conservator has consented or will consent to serve as conservator;
   13. If known, whether any nominated conservator is an owner, operator, or employee of a long-term care or other caregiving institution or facility at which the proposed ward is receiving care, and, if so, whether the nominated conservator is related to the proposed ward by blood, marriage, or adoption.
   14. Whether an emergency conservator has been appointed for the proposed ward or a petition for the appointment of an emergency conservator has been filed or is being filed;
   15. If known, a disclosure of any ownership or other financial interest that would cause any nominated conservator to have a conflict of interest with the proposed ward;
   16. A specific listing of any additional powers, as described in subsections (b) and (c) of Code Section 29-5-23, that are requested by the conservator and a statement of the circumstances which would justify the granting of additional powers;
   17. Whether a guardian or conservator has been appointed in another state or whether a petition for the appointment of a guardian or conservator is pending in another state;
   18. That to petitioner's knowledge, there has been no petition for conservatorship denied or dismissed within two years by any court of this state or, if so, that there has been a significant change in the condition or circumstances of the individual, as shown by the accompanying affidavits or evaluation;
   19. Any state in which the proposed ward was physically present, including any period of temporary absence, for at least six consecutive months immediately before the filing of the petition or ending within the six months prior to the filing of the petition; and
   20. The reason for any omission in the petition for appointment of conservator in the event full particulars are lacking.
3. 1. The petition shall be sworn to by two or more petitioners or shall be supported by an affidavit of a physician licensed to practice medicine under Chapter 34 of Title 43, a psychologist licensed to practice under Chapter 39 of Title 43, or a licensed clinical social worker or, if the proposed ward is a patient in any federal medical facility in which such a physician, psychologist, or licensed clinical social worker is not available, a physician, psychologist, or licensed clinical social worker authorized to practice in that facility.
   2. Any affidavit shall be based on personal knowledge and shall state that the affiant has examined the proposed ward within 15 days prior to the filing of the petition and that, based upon the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the management of the proposed ward's property.
   3. In addition to stating the facts that support the claim of the need for a conservator, the affidavit shall state the foreseeable duration of the conservatorship and may set forth the affiant's opinion as to any other limitations on the conservatorship.

(Code 1981, §29-5-10, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2013, p. 884, § 2/HB 446; Ga. L. 2019, p. 693, § 14/HB 70.)

The 2019 amendment, effective January 1, 2020, substituted the present provisions of subsection (a) for the former provisions, which read: "Any interested person or persons, including the proposed ward, may file a petition for the appointment of a conservator. The petition shall be filed in the court of the county in which the proposed ward is domiciled or is found, provided that the court of the county where the proposed ward is found shall not have jurisdiction to hear any conservatorship petition if it appears that the proposed ward was removed to that county solely for the purposes of filing a petition for the appointment of a conservator."

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, certain 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.

- The object of former Code 1933, § 49-604 in requiring notice to relatives was not to confer any right upon them, but was solely for the purpose of protecting public and interest of alleged incompetent. Phillips v. Phillips, 202 Ga. 776, 44 S.E.2d 767 (1947) (decided under former Code 1933, § 49-604).

Relations notified are not parties in their own behalf but are notified for benefit of person to be considered and given an opportunity to be heard in that person's behalf. They are not summoned by process; no judgment can be rendered against them merely because of such notice; and there is no provision for taxing costs against them. Slaughter v. Heath, 127 Ga. 747, 57 S.E. 69, 27 L.R.A. (n.s.) 1 (1907) (decided under former Code 1895, § 2573).

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).

- A ward's stepchildren are not children under the guardianship statute, nor are they next of kin, and because there were individuals in this case related to the ward by blood, who were not notified of the guardianship proceedings, the appointment of the guardian was void. Wilson v. James, 260 Ga. 234, 392 S.E.2d 5 (1990) (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).

- Former O.C.G.A. § 29-5-6(a)(3), which required a guardianship petition to be sworn to by at least two petitioners, did not result in a similar requirement that a petitioner present two witnesses in support of the petition at the actual trial. Cummings v. Stanford, 193 Ga. App. 695, 388 S.E.2d 729 (1989) (decided under former O.C.G.A. § 29-5-6).

- A person receiving social security disability benefits based on a mental disability, who had not been adjudicated to be incapacitated, was not disqualified to petition for appointment of a guardian for mother. Johnson v. Jones, 214 Ga. App. 386, 448 S.E.2d 1 (1994) (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) (decided under former Code 1933, § 49-604); Trapnell v. Smith, 131 Ga. App. 254, 205 S.E.2d 875 (1974) (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).

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).

- Trial court did not err in denying a ward's petition to strike the affidavit of a psychologist that accompanied a petition for the appointment of a conservator to manage the ward's property and financial affairs because the affidavit satisfied the requirements of O.C.G.A. § 29-5-10(c); the affidavit included the specific determination, required by § 29-5-10(c)(2), that the ward lacked sufficient capacity to make or communicate significant, responsible decisions concerning the management of the ward's property, and statements supporting that determination. In re Cochran, 314 Ga. App. 188, 723 S.E.2d 490 (2012).

Trial court did not err in denying a ward's petition to strike the affidavit of a psychologist that accompanied a petition for the appointment of a conservator to manage the ward's property and financial affairs because although the ward did not agree to the appointment of a conservator, the Department of Human Services nevertheless was authorized to petition for the appointment under O.C.G.A. § 30-5-5(e); because the Department was authorized to petition for a conserv- atorship, and inasmuch as O.C.G.A. § 29-5- 10(c) contemplated that such a petition be supported by the affidavit of a professional, such as a licensed psychologist, the Department did not act without any authority when the Department obtained an affidavit from the psychologist. In re Cochran, 314 Ga. App. 188, 723 S.E.2d 490 (2012).

- When 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 Fuller v. Weekes, 105 Ga. App. 790, 125 S.E.2d 662 (1962); 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).

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 former 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, §§ 38 et seq., 59 et seq.

- 39 Am. Jur. 2d, Guardian and Ward, § 7 et seq. 56 C.J.S., Mental Health, § 22 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.