2020 Georgia Code
Title 29 - Guardian and Ward
Chapter 5 - Conservators of Adults
Article 3 - Rights and Responsibilities of Ward
§ 29-5-23. Authority of Conservator; Cooperation With Guardian or Other Interested Parties

Universal Citation: GA Code § 29-5-23 (2020)
  1. Unless inconsistent with the terms of any court order relating to the conservatorship, a conservator without court order may:
    1. Make reasonable disbursements from the annual income or, if applicable, from the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30 for the support, care, education, health, and welfare of the ward and those persons who are entitled to be supported by the ward;
    2. Enter into contracts for labor or service upon such terms as the conservator may deem best, but only to the extent that the annual compensation payable under such contracts, when combined with other anticipated disbursements, does not exceed the amount of the annual income or, if applicable, the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30;
    3. Borrow money for one year or less and bind the ward or the ward's property, but only if the amount of the annual payments, when combined with other anticipated disbursements, does not exceed the amount of the annual income or, if applicable, the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30 and only if done for purposes of paying the ward's debts, repairing the ward's dwelling place, or providing for the support, care, education, health, or welfare of the ward and the persons who are entitled to be supported by the ward;
    4. Receive, collect, and hold the ward's property, additions to the ward's property, and all related records;
    5. Retain the property received by the conservator upon the creation of the conservatorship in accordance with the provisions of Code Section 29-5-31;
    6. Bring, defend, or participate in legal, equitable, or administrative proceedings, including alternative dispute resolution, as are appropriate for the support, care, education, health, or welfare of the ward in the name of or on behalf of the ward;
    7. Fulfill, as far as possible, or, to the extent permitted by law, disaffirm the executory contracts and comply with the executed contracts of the ward;
    8. Revoke a revocable trust set up by the ward or exercise such other powers of revocation, amendment, or withdrawal that are exercisable by the ward, but only if the governing instrument expressly allows a conservator to revoke the trust or exercise the powers;
    9. Examine the will and any other estate planning documents of the ward;
    10. Appoint an attorney in fact to act for the conservator when the conservator is unable to act; provided, however, that the conservator and the conservator's sureties shall be bound for the acts of the attorney as if the acts were the personal acts of the conservator;
    11. Invest the ward's property pursuant to the provisions of Code Sections 29-5-32 and 29-5-33;
    12. Sell the ward's stocks and bonds pursuant to the provisions of subsection (b) of Code Section 29-5-35;
    13. Compromise any contested or doubtful claim for or against the ward if the proposed gross settlement as defined in Code Section 29-3-3 is in the amount of $15,000.00 or less; and
    14. Release the debtor and compromise all debts in the amount of $15,000.00 or less when the collection of the debt is doubtful.
    1. In the petition for appointment, or at any time during the conservatorship, the conservator may request the continuing power:
      1. To invest the ward's property in investments other than those authorized in Code Section 29-5-32, pursuant to the provisions of Code Section 29-5-34, without further court approval of any investment;
      2. To sell, rent, lease, exchange, or otherwise dispose of any or all of the ward's real or personal property without complying with the provisions of Code Section 29-5-35 other than the provisions for additional bond set forth in subsection (e) of Code Section 29-5-35;
      3. To continue the operation of any farm or business in which the ward has an interest; or
      4. To access the digital assets of the ward, pursuant to Code Section 53-13-20.
    2. Unless the request for the powers described in paragraph (1) of this subsection is made in the petition for the initial appointment of the conservator, the court shall order a hearing as the court deems appropriate. Notice shall be given by personal service to the ward and a guardian ad litem appointed for the ward. Notice shall be given by first-class mail to the guardian of the ward, if any; the surety on the conservator's bond; and to the following relatives of the ward whose whereabouts are known:
      1. The spouse of the ward; and
      2. All adult children of the ward; or
      3. If there is no adult child, then at least two adults in the following order of priority:
        1. Lineal descendants of the ward;
        2. Parents and siblings of the ward; and
        3. Friends of the ward.
  2. At the time of the appointment of the conservator or at any time thereafter, and after appointment of a guardian ad litem for the ward and a hearing as the court deems appropriate, any of the following powers may be specifically granted to the conservator on a case-by-case basis, upon notice as the court shall determine:
    1. To make disbursements that exceed by no more than a specific amount the annual income or, if applicable, the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30 for the support, care, education, health, and welfare of the ward and those persons who are entitled to be supported by the ward;
    2. To enter into contracts for labor or service for which the compensation payable under such contracts, when combined with other disbursements from the estate, exceeds the annual income or, if applicable, the annual budget amount that has been approved by the court pursuant to Code Section 29-5-30;
    3. To make specific investments of the ward's property that do not comply with the provisions of Code Section 29-5-32, pursuant to the provisions of Code Section 29-5-34;
    4. To sell, rent, lease, exchange, or otherwise dispose of specific items of the ward's real or personal property without complying with the provisions of Code Section 29-5-35 other than the provisions for additional bond set forth in subsection (e) of Code Section 29-5-35;
    5. To compromise a contested or doubtful claim for or against the ward if the proposed gross settlement as defined in Code Section 29-3-3 is more than $15,000.00;
    6. To release the debtor and compromise all debts for which the collection is doubtful when the amount of the debt is $15,000.00 or more;
    7. To use the ward's property to erect a dwelling for the ward or make an addition or renovation to the ward's dwelling place;
    8. To establish or add property to a trust for the benefit of the ward and, if applicable, those individuals who are entitled to support from the ward; provided, however, unless otherwise provided by court order pursuant to Code Section 29-5-36, the trust must provide that the ward may revoke the trust if the ward is restored to capacity and the trust shall terminate upon the ward's death and any property remaining in the trust shall be paid to the ward's estate;
    9. To disclaim or renounce any property or interest in property of the ward in accordance with the provisions of Code Section 53-1-20;
    10. To access the digital assets of the ward pursuant to Code Section 53-13-20;
    11. To engage in estate planning for the ward pursuant to the provisions of Code Section 29-5-36; and
    12. To perform such other acts as may be in the best interest of the ward.
  3. In granting any of the powers described in subsections (b) and (c) of this Code section, the court shall consider the views of the guardian, if available, or, if there is no guardian, of others who have custody of the ward.
  4. In performing any of the acts described in this Code section, the conservator shall endeavor to cooperate with the guardian or, if there is no guardian, with others who have custody of the ward.

(Code 1981, §29-5-23, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2005, p. 60, § 29/HB 95; Ga. L. 2011, p. 752, § 29/HB 142; Ga. L. 2018, p. 1089, § 6/SB 301; Ga. L. 2019, p. 693, § 17/HB 70.)

The 2018 amendment, effective July 1, 2018, in paragraph (b)(1), deleted "or" at the end of subparagraph (b)(1)(B), added "; or" at the end of subparagraph (b)(1)(C), and added subparagraph (b)(1)(D).

The 2019 amendment, effective January 1, 2020, added paragraph (c)(10) and redesignated former paragraphs (c)(10) and (c)(11) as present paragraphs (c)(11) and (c)(12), respectively.

Cross references.

- Service of process on guardian of incapacitated adult, § 9-11-4(l)(4).

Contracts for labor or service by trustees and administrators, § 53-7-8 (Pre-1998 Probate Code).

Private sale of certain stocks and bonds by guardian, § 53-8-37 (Pre-1998 Probate Code).

Revised Uniform Fiduciary Access to Digital Assets Act, § 53-13-1 et seq.

Law reviews.

- For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article, "The Scope of Permissible Investments by Fiduciaries Under Georgia Law," see 19 Ga. St. B.J. 6 (1982). For annual survey of law of wills, trusts, and administration of estates, see 38 Mercer L. Rev. 417 (1986). For annual survey of wills, trusts, and administration of estates, see 42 Mercer L. Rev. 491 (1990). For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 69 Mercer L. Rev. 341 (2017). For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Authority of Probate Judge
  • Notice
  • Claims Subject to Compromise
  • Effect of Compromise

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Laws 1809, Cobb's 1851 Digest, p. 315, former Code 1859, p. 37, § 1, former Code 1868, §§ 1815, 1828, former Code 1873, §§ 1824, 1838, 2539, former Code 1882, §§ 1824, 2537, 2538, 2539, former Code 1895, §§ 2541, 2555, 2571, former Civil Code 1895, §§ 3432, 4630, former Civil Code 1910, §§ 3060, 3065, 3074, 4004, 4005, 4008, 5176, former Code 1933, §§ 49-202, 49-204, 49-213, 49-215, 49-216, 49-217, 49-219, 49-221, 49-226, and § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. §§ 29-2-16 and29-2-20 are included in the annotations for this Code section.

Primarily income, and not corpus, of ward's property is to be expended for the purpose of education, maintenance, and making necessary repairs on the ward's property. Little v. West, 145 Ga. 563, 89 S.E. 682 (1916) (decided under former Civil Code 1910, § 3060).

Guardian is entitled to charge a ward with necessary medical expenses incurred. Poole v. Wilkinson, 42 Ga. 539 (1871) (decided under former Code 1868, § 1815).

Guardian entitled to reasonable attorney's fees incurred in suits for collection of moneys to which ward was entitled. Royston v. Royston, 29 Ga. 82 (1859) (decided under former Ga. L. 1859, p. 37, § 1); Zellner v. Cleveland, 69 Ga. 631 (1882);(decided under former Code 1882, § 1824).

Expenses incurred in opposition to ward's petition for restoration.

- Where ward's mental condition is in doubt, and guardian acts in good faith in opposing ward's petition for restoration, the guardian is entitled to recover reasonable and necessary expenses so incurred, including attorney fees. Woodruff v. Trust Co., 233 Ga. 135, 210 S.E.2d 321 (1974) (decided under former Code 1933, § 49-202).

Guardian entitled to reimbursement for payment of taxes.

- Where real estate of ward is impressed by liens for municipal taxes and street pavement assessments, and the guardian pays them off, the guardian will be allowed, in an equitable accounting, to encroach upon corpus of estate for reimbursement, where there are not sufficient funds arising from income. English v. English, 149 Ga. 404, 100 S.E. 362 (1919) (decided under former Civil Code 1910, § 3060).

Determination of necessities.

- For a determination of what are necessities where representations are made by ward to guardian, see Little v. West, 145 Ga. 563, 89 S.E. 682 (1916) (decided under former Civil Code 1910, § 3060).

Permanent improvements.

- Guardian not authorized to sell or encumber property of ward for purpose of erecting permanent improvements on it; or, if the guardian erects permanent improvements on it with the guardian's own money, the guardian cannot obtain a legal order of the ordinary (now judge of probate court), or court of ordinary (now probate court), to sell it for reimbursement of guardian's expenses. Burke & Williams v. Mackenzie, 124 Ga. 248, 52 S.E. 653 (1905) (decided under former Civil Code 1895, § 2541); Little v. West, 145 Ga. 563, 89 S.E. 682 (1916); Sturgis v. Davis, 157 Ga. 352, 121 S.E. 318 (1924) (decided under former Civil Code 1910, § 3060);(decided under former Civil Code 1910, § 3060).

Equity jurisdiction of estates of wards of chancery is broad, comprehensive, and plenary. Turner v. Prigmore, 202 Ga. 377, 43 S.E.2d 259 (1947) (decided prior to 1958 amendment of former Code 1933, § 49-204).

Guardian may convey estate for years.

- By complying with statutory provisions, guardians can convey an estate for years, after due advertisement and proper application to superior court (now within jurisdiction of probate court), and order of the judge thereon, for purpose of reinvestment. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Lease of estate for years is in effect a sale.

- Sale of lands by guardian for reinvestment may be made at public or private sale under direction of judge of superior court (now within jurisdiction of judge of probate court) and the lease of an estate for years of lands is in effect the sale of an estate for years therein. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Order of court authorizing long-term lease with option to buy ward's land was valid. Union Camp Corp. v. Youmans, 227 Ga. 687, 182 S.E.2d 468 (1971) (decided under former Code 1933, § 49-204).

Guardian not to allow conflict of interest.

- A guardian may not act in such a way that the guardian's own personal interest may come in conflict with interest of ward with respect to estate of latter. Allen v. Wade, 203 Ga. 753, 48 S.E.2d 538 (1948) (decided under former Code 1933, § 49-204).

Negotiations for sale prior to obtaining court order allowed.

- Guardians can, before they obtain an order of court, enter into negotiations looking to private sale or lease of an estate for years, and such action on their part would not be contrary to public policy nor illegal. Shell Petro. Corp. v. Jackson, 47 Ga. App. 667, 171 S.E. 171 (1933) (decided under former Code 1933, § 49-204).

Purchaser claiming title due to guardian's sale must show order.

- Purchaser of real estate claiming title by virtue of guardian's sale must show order of ordinary (now judge of probate court) granting to guardian leave to sell it. Wells v. Chaffin, 60 Ga. 677 (1878) (decided under former law).

Sale by will not applicable.

- Former Code 1933, § 49-208 (see former O.C.G.A. § 29-2-7) had no application to sale under power conferred by will. Harwell v. Foster, 102 Ga. 38, 28 S.E. 967 (1897) (decided under former Civil Code 1895, § 4630).

Superior court shall determine necessity of order and validity of claim.

- The superior court shall try both issue of necessity of order, and whether property is held adversely. Hull v. Watkins, 134 Ga. 779, 68 S.E. 506 (1910) (decided under former Civil Code 1910, § 5176).

Validity of claim not dependent upon giving of bond.

- It is not necessary to validity of claim of land at executor's or administrator's sale that bond and security should be given. Falls v. Griffith, 25 Ga. 72 (1858) (decided under Laws 1809, Cobb's 1851 Digest, p. 315).

Finding a purchaser for property was a service within meaning of former Code 1933, § 49-213 (former O.C.G.A. § 29-2-11). Turner v. Prigmore, 202 Ga. 377, 43 S.E.2d 259 (1947) (decided under former Code 1933, § 49-213).

Reference to county in former Code 1933, § 49-213 (former O.C.G.A. § 29-2-11) referred to county wherein jurisdiction of guardianship laid. Turner v. Prigmore, 202 Ga. 377, 43 S.E.2d 259 (1947) (decided under former Code 1933, § 49-213).

For limitation of authority of testamentary guardian of incompetent to whom life estate has been devised, see Greer v. Greer, 218 Ga. 416, 128 S.E.2d 51 (1962) (decided under former Code 1933, § 49-213).

For a discussion of liability of bank which receives fruits of misappropriation by trustee, see Georgia R.R. Bank & Trust Co. v. Liberty Nat'l Bank & Trust Co., 180 Ga. 4, 177 S.E. 803 (1934) (decided under former Code 1933, §§ 49-215, 49-217).

Former Civil Code 1910, § 3432 (former O.C.G.A. § 29-2-14) was inapplicable to exchange of lands. Mills v. Geer, 111 Ga. 275, 36 S.E. 673, 52 L.R.A. 934 (1900) (decided under former Civil Code 1895, § 3432).

Guardian acted in fiduciary capacity and was bound to utmost good faith with court and ward in interest of latter in proceeding under former Code 1933, § 49-216 (former O.C.G.A. § 29-2-14). American Sur. Co. v. Adams, 190 Ga. 575, 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

Proceeding does not require appointment of guardian ad litem.

- Petition of guardian to invest funds of ward under this law is an ex parte proceeding of the ward acting through the guardian; it does not require appointment of guardian ad litem for ward. American Sur. Co. v. Adams, 190 Ga. 575, 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

No presumption that investments comply with statutes.

- Although guardian may in good faith have disposed of funds by investing a portion of them in real estate for benefit of the ward, who afterwards during minority occupies the real estate as a home, there is no presumption that these expenditures are legally made by the guardian's having obtained from judge an order for investment of funds in real estate. New York Life Ins. Co. v. Gilmore, 40 Ga. 431, 149 S.E. 799 (1929), rev'd on other grounds, 171 Ga. 894, 157 S.E. 188 (1931) (decided under former Civil Code 1910, § 4008).

Investment by guardian in violation of former Code 1933, § 49-216 (former O.C.G.A. § 29-2-14) was a breach of guardian's statutory bond that would authorize suit to recover amount from guardian and guardian's surety. American Sur. Co. v. Adams, 190 Ga. 575, 10 S.E.2d 30 (1940) (decided under former Code 1933, § 49-216).

For a discussion of liability of guardian for real estate investments without court order, see Paulk v. Roberts, 42 Ga. App. 79, 155 S.E. 55 (1930) (decided under former Civil Code 1910, § 4008).

Compromises of claims and compromises of debts distinguished.

- Former Code 1933, §§ 49-219 and 49-221 (former O.C.G.A. §§ 29-2-16 and29-2-18) were for purpose of distinguishing when guardian can compromise contested or doubtful claim of ward, and when the guardian can compromise a doubtful debt of ward; requirements for compromising a claim and for compromising a debt are different, and are set forth in separate sections. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, §§ 49-219 and 49-221).

Former Civil Code 1910, § 4004 (former O.C.G.A. § 29-2-16) did not authorize rescission of contracts. Jones v. Ragan, 136 Ga. 653, 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4004).

Subject matter to be compromised is claims whose justice and legality may be questioned. Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2537).

Compromise need not be approved by probate judge.

- There is no requirement that a compromise be approved by the ordinary (now judge of probate court), as is the case with doubtful debts under former Code 1933, § 49-221 (former O.C.G.A. § 29-2-18) referring to liquidated contractual demands. Macris v. Laughlin Insulation Co., 124 Ga. App. 573, 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

Executor's authority need not be revoked to attack fraudulent agreement.

- Where executor has exceeded authority in entering agreement, the executor's authority need not be revoked in order to attack such agreement. Empire Life Ins. Co. v. Mason, 140 Ga. 141, 78 S.E. 935 (1913) (decided at time when law included guardians, administrators, executors and other fiduciaries in its grant of authority to compromise claims; decided under former Civil Code 1910, § 4004).

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 they 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. § 29-2-16).

For general discussion of former Code 1882, § 2538 (former O.C.G.A. § 29-2-17), see Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2538).

On necessity of order of ordinary (now judge of probate court), see Jones v. Ragan, 136 Ga. 653, 71 S.E. 1098 (1911) (decided under former Civil Code 1910, § 4005).

Compliance with section necessary for validity of compromise order.

- The ordinary's (now judge of probate court) direction to compromise doubtful debt belonging to estate was worth nothing to executor unless it appeared that requirements of former Code 1873, § 2539 (former O.C.G.A. § 29-2-18) had been complied with. Ponce v. Wiley, 62 Ga. 118 (1878) (decided under former Code 1873, § 2539, which included guardians, administrators, executors and other fiduciaries in its grant of authority to compromise debts).

Compromise of claims and compromise of debts distinguished.

- Former Code 1933, § 49-221 (former O.C.G.A. § 29-2-16) was for purpose of distinguishing when guardian could compromise contested or doubtful claim of ward, and when guardian could compromise a doubtful debt of ward; requirements for compromising a claim and for compromising a debt were different, and were set forth in separate sections. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

Subject matter to be compromised is debts, true and real, but doubtful as to solvency. Maynard v. Cleveland, 76 Ga. 52 (1885) (decided under former Code 1882, § 2539).

"Debt" means that fixed and specific amount is owing.

- Distinguishing characteristic of word debt is that fixed and specific amount is owing and no future valuation is required to settle it. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

Guardians, acting en autre droit, are generally held personally liable on promissory notes, because they have no authority to bind ex directo the persons for whom, or for whose benefit, or for whose estate they act; and hence to give any validity to a note they must be deemed personally bound as makers. Lovelace v. Smith, 39 Ga. 130 (1869) (decided under former Code 1868, § 1828); Howard v. Cassels, 105 Ga. 412, 31 S.E. 562, 70 Am. St. R. 44 (1898); Lokey v. Trust Co. Bank, 198 Ga. App. 803, 402 S.E.2d 803 (1991) (decided under former Code 1895, § 2555);(decided under former O.C.G.A. § 29-2-20).

Deed to secure debt executed by the guardians could not be enforced against minor wards since the guardian did not obtain court approval before obtaining the loan. United Cos. Lending Corp. v. Coates, 238 Ga. App. 716, 520 S.E.2d 236 (1999) (decided under former O.C.G.A. § 29-2-20).

Loan of ward's money upon security deed to real estate.

- A guardian cannot lend money of ward upon security deed to real estate unless guardian is authorized to do so by order of superior court. Cochran v. Spinks, 180 Ga. 623, 180 S.E. 221 (1935) (decided prior to amendment of former Code 1933, § 49-226).

Contract for maintenance and education not binding without prior approval.

- Without approval of the ordinary (now judge of probate court), contract entered into by guardian to pay another for maintenance and education of ward cannot support judgment binding corpus of ward's estate. McQueen v. Fisher, 22 Ga. App. 394, 95 S.E. 1004 (1918) (decided under former Civil Code 1910, § 3074).

Effects of guardian lending money to oneself as individual and appointment of guardian ad litem, see Cochran v. Spinks, 180 Ga. 623, 180 S.E. 221 (1935) (decided under former Code 1933, § 49-226).

Power to contract, conferred by will, is controlled by will.

- Where power to contract was conferred by will, validity of contract made by guardian depends on that instrument, and effect of judgment rendered on such contract is determined, not by the law regulating power of guardians, but by powers given guardian by the will. Howard v. Cassels, 105 Ga. 412, 31 S.E. 562, 70 Am. St. R. 44 (1898) (decided under former Civil Code 1895, § 2555).

Guardian empowered to appoint agent.

- Guardian had power to appoint agent to act for guardian during absence in confederate army, and any act of agent within scope of agent's authority would be as valid as that of guardian. Tarpley v. McWhorter, 56 Ga. 410 (1876) (decided under former Code 1873, § 1838).

Guardian is entitled to possession of ward's effects.

- Guardian of person and property of a lunatic is entitled to retain possession and control of ward's effects so long as guardianship continues; and to deprive the guardian of such possession and control before ward is restored to sanity, it is necessary that the guardian's letters be revoked and another guardian appointed. Bonner v. Evans, 89 Ga. 656, 15 S.E. 906 (1892) (decided under prior law).

Commingling of funds and failure to account is breach.

- Deposit of ward's funds to individual account of guardian, and failure to account therefor, is per se breach of the bond. Hawes v. Standard Accident Ins. Co., 54 Ga. App. 776, 189 S.E. 59 (1936) (decided under former Code 1933, § 49-603).

Guardian cannot maintain divorce proceedings.

- Suit for divorce instituted by guardian in behalf of one who has been adjudicated insane cannot be maintained in this state; the right to bring and prosecute such an action being strictly personal, and not within authority conferred by law upon a guardian. Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947) (decided under former Code 1933, § 49-603).

Proceeding by next friend for waste with proceeding to remove guardian.

- If a next friend suing in behalf of a lunatic can maintain an action for waste committed by the guardian, or recover money in the guardian's hands, it can be done only in connection with a proceeding to remove the guardian and revoke guardianship letters. Bonner v. Evans, 89 Ga. 656, 15 S.E. 906 (1892) (decided under prior law).

Cited in Springer v. Oliver, 21 Ga. 517 (1857); Brown v. Wright, 39 Ga. 96 (1869); Hooper v. Howell, 50 Ga. 165 (1873); Speer v. Tinsley, 55 Ga. 89 (1875); Wynn v. Bryce, 59 Ga. 529 (1877); Coffee v. Ragsdale, 112 Ga. 705, 37 S.E. 968 (1901); Fidelity & Deposit Co. v. M. Rich & Bros., 122 Ga. 506, 50 S.E. 338 (1905); Burke & Williams v. Mackenzie, 124 Ga. 248, 52 S.E. 653 (1905); Furr v. Burns, 124 Ga. 742, 53 S.E. 201 (1906); Williams v. Smith, 128 Ga. 306, 57 S.E. 801 (1907); Rexford v. Bleckley, 131 Ga. 678, 63 S.E. 337 (1908); Beach v. Lott, 132 Ga. 70, 63 S.E. 627 (1909); Crawford v. Crawford, 139 Ga. 68, 76 S.E. 564 (1912); First Nat'l Bank v. Mead, 145 Ga. 608, 89 S.E. 681 (1916); Walton v. Reid, 148 Ga. 176, 96 S.E. 214 (1918); Home Mixture Guano Co. v. Woolfolk, 148 Ga. 567, 97 S.E. 637 (1918); Sturgis v. Davis, 157 Ga. 352, 121 S.E. 318 (1924); Nix v. Monroe, 36 Ga. App. 356, 136 S.E. 806 (1927); New York Life Ins. Co. v. Gilmore, 40 Ga. 431, 149 S.E. 799 (1929); Paulk v. Roberts, 42 Ga. App. 79, 155 S.E. 55 (1930); Mobley v. Phinizy, 42 Ga. App. 33, 155 S.E. 73 (1930); Citizens' & S. Nat'l Bank v. Clark, 172 Ga. 625, 158 S.E. 297 (1931); Georgia Power Co. v. Davis, 43 Ga. App. 791, 160 S.E. 690 (1931); Summerour v. Fortson, 174 Ga. 862, 164 S.E. 809 (1932); Tinsley v. Maddox, 176 Ga. 471, 168 S.E. 297 (1933); Powell v. Harrison, 180 Ga. 197, 178 S.E. 745 (1935); Jernigan v. Radford, 182 Ga. 484, 185 S.E. 828 (1936); Moore v. Pittman, 185 Ga. 619, 196 S.E. 50 (1938); Heist v. Dunlap & Co., 193 Ga. 462, 18 S.E.2d 837 (1942); Brown v. Gibson, 203 Ga. 213, 46 S.E.2d 68 (1948); Humber v. Garrard, 80 Ga. App. 76, 55 S.E.2d 378 (1949); West v. Downer, 218 Ga. 235, 127 S.E.2d 359 (1962); Greer v. Greer, 218 Ga. 416, 128 S.E.2d 51 (1962); Tucker v. Tucker, 221 Ga. 128, 143 S.E.2d 639 (1965); Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill, 113 Ga. App. 283, 148 S.E.2d 83 (1966); Seaboard Constr. Co. v. Clifton, 121 Ga. App. 247, 173 S.E.2d 436 (1970); Knight v. Lowery, 124 Ga. App. 172, 183 S.E.2d 221 (1971); First Nat'l Bank v. Rapides Bank & Trust Co., 145 Ga. App. 514, 244 S.E.2d 51 (1978); Bacon v. Smith, 222 Ga. App. 542, 474 S.E.2d 728 (1996); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001).

Authority of Probate Judge

Probate judge may ratify certain actions of guardian.

- Where trustee has acted fairly and properly without previous consent of the ordinary (now judge of probate court), and where prompt and regular annual returns of the trustee's actions in that behalf have been made, the ordinary (now judge), by approving such returns, may ratify the action. Dowling v. Feeley, 72 Ga. 557 (1884) (decided under former Code 1882, § 1824); Shipp v. McCowen, 147 Ga. 711, 95 S.E. 251 (1918);(decided under former Civil Code 1910, § 3060).

Probate judge may consent to expenditures exceeding profits.

- Ordinary (now judge of probate court) may consent to expenditures exceeding annual profits of ward's estate for expenses of maintenance and education by approving the regular annual returns of the guardian, which show on their face that expenses have exceeded income. Cook v. Rainey, 61 Ga. 452 (1878) (decided under former Code 1873, § 1824); Sturgis v. Davis, 157 Ga. 352, 121 S.E. 318 (1924); Banister v. Bagley, 56 Ga. App. 615, 193 S.E. 480 (1937) (decided under former Civil Code 1910, § 3060); Bailey v. McElroy, 61 Ga. App. 367, 6 S.E.2d 140 (1939);(decided under former Code 1933, § 49-202);(decided under former Code 1933, § 49-202).

Probate judge cannot delegate discretion.

- Discretion to encroach upon corpus for maintenance and education of ward is confined to the ordinary (now judge of probate court) and the ordinary cannot relegate it to another. Shipp v. McCowen, 147 Ga. 711, 95 S.E. 251 (1918) (decided under former Civil Code 1910, § 3060).

Notice

Notice requirement is jurisdictional.

- Requirement of former Code 1933, §§ 49-204 and 49-205 (see former O.C.G.A. §§ 29-2-4 and29-2-5) as to citation and notice to ward prior to leave to sell, exchange or encumber the ward's property is jurisdictional, and the ordinary (now judge of probate court) acts without jurisdiction by granting an order to sell without the required notice having been given. Fuller v. Dillon, 220 Ga. 36, 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Showing lack of notice rebuts presumption of validity of sale.

- Though a judgment of an ordinary (now judge of probate court) granting leave to sell being regular upon its face is presumptively valid, such presumption is only prima facie and may be rebutted by evidence showing that jurisdictional fact of publication of notice had not been accomplished at time of grant of order. Fuller v. Dillon, 220 Ga. 36, 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Adequacy of notice under former O.C.G.A. § 29-2-4. - See Union Camp Corp. v. Youmans, 227 Ga. 687, 182 S.E.2d 468 (1971) (decided under former Code 1933, § 49-204).

Ward may appear by next friend.

- Former Code 1933, § 49-204 (former O.C.G.A. § 29-2-4) contemplated right of ward to be heard, and where ward was incompetent to appear in person, the ward had right to appear by next friend. Fuller v. Dillon, 220 Ga. 36, 136 S.E.2d 733 (1964) (decided under former Code 1933, § 49-204).

Claims Subject to Compromise

"Claim" embraces assertion of liability to party making it to pay sum of money. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

"Claims" is sufficiently broad to include a tort action. Macris v. Laughlin Insulation Co., 124 Ga. App. 573, 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

"Claims" includes demands arising out of tort.

- "Claims" as used in former Code 1933, § 49-219 (former O.C.G.A. § 29-2-16) had a technical meaning and implied that a right is in dispute, including a demand arising out of tort. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

Wrongful death action was a property right and could be compromised or settled by a duly appointed guardian of property pursuant to former O.C.G.A. § 29-2-16. Hay v. Norfolk S. Ry., 879 F. Supp. 1192 (N.D. Ga. 1994) (decided under former O.C.G.A. § 29-2-16).

Effect of Compromise

Guardian may negotiate complete settlement, which is conclusive until set aside in direct proceeding brought for that purpose. Macris v. Laughlin Insulation Co., 124 Ga. App. 573, 185 S.E.2d 413 (1971) (decided under former Code 1933, § 49-221).

Compromise settlement is conclusive until set aside.

- Compromise settlement of doubtful "claim" made by guardian is conclusive until set aside in direct proceeding in which guardian is a necessary party. Campbell v. Atlanta Coach Co., 58 Ga. App. 824, 200 S.E. 203 (1938) (decided under former Code 1933, § 49-221).

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 they disbursed to themselves, and to hold the attorneys 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. § 29-5-4).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 86 et seq., 205 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 15, 16, 56 et seq., 75 et seq., 280.

57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR.

- Constitutionality of statute authorizing guardian to sell or lease land of ward, 4 A.L.R. 1552.

Right of guardian to expend principal of ward's estate for maintenance and support, 5 A.L.R. 632.

Power of court to authorize guardian to borrow ward's money, 30 A.L.R. 461.

Right of guardian who promises to provide out of own estate for ward to allowance out of ward's estate, 56 A.L.R. 536.

Right of guardian to allowance for expenditures prior to appointment, 67 A.L.R. 1405.

Right of trustee, executor, administrator, or guardian to purchase property of estate or trust at sale brought about by third person, 77 A.L.R. 1513.

Character of claims or obligations contemplated by statutes expressly empowering executors, administrators, or guardians to borrow money, 85 A.L.R. 215.

Liability of trustee, guardian, executor, or administrator for loss of funds invested, as affected by order of court authorizing the investment, 88 A.L.R. 325.

Power of guardian to sell ward's property without order of court, 108 A.L.R. 936.

Right of trustee or guardian to retain unauthorized securities held by testator or creator of trust, 122 A.L.R. 801; 135 A.L.R. 1528.

Effect of beneficiary's consent to, acquiescence in, or ratification of, improper investments or loans (including failure to invest) by trustee or other fiduciary, 128 A.L.R. 4.

Guardian's sale of ward's property initiated before, but not finally concluded until after, ward's attainment of majority, 141 A.L.R. 1022.

Power of guardian or committee to compromise liquidated contract claim or money judgment, and of courts to authorize or approve such a compromise, 155 A.L.R. 196.

Construction and effect of instrument authorizing or directing trustee or executor to retain investments received under such instrument, 47 A.L.R.2d 187.

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

Guardian's liability for interest on ward's funds, 72 A.L.R.2d 757.

Power of court or guardian to make noncharitable gifts or allowances out of funds of incompetent ward, 24 A.L.R.3d 863.

Amount of attorneys' compensation in matters involving guardianship and trusts, 57 A.L.R.3d 550.

Right of guardian or committee of incompetent to incur obligations so as to bind incompetent or his estate, or to make expenditures, without prior approval by court, 63 A.L.R.3d 780.

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