2021 Georgia Code
Title 29 - Guardian and Ward
Chapter 4 - Guardians of Adults
Article 2 - Procedure for Appointment
§ 29-4-10. Petition for Appointment of Guardian; Requirements for Petition

1. Any interested person, including the proposed ward, may file a petition for the appointment of a guardian. 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 guardian and that such court acquired jurisdiction to appoint a guardian 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 guardian 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 guardian and that person's relationship to the proposed ward, if any;
   4. A statement of the reasons the guardianship is sought, including the facts which support the claim of the need for a guardian;
   5. Any foreseeable limitations on the guardianship;
   6. Whether, to the petitioner's knowledge, there exists any living will, durable power of attorney for health care, advance directive for health care, order relating to cardiopulmonary resuscitation, or other instrument that deals with the management of the person of the proposed ward in the event of incapacity and the name and address of any fiduciary or agent named in the instrument;
   7. 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;
   8. If known, the name and address of any individual nominated to serve as guardian by the proposed ward, as described in paragraph (1) of subsection (b) of Code Section 29-4-3;
   9. If known, the name and address of any individual nominated to serve as guardian by the proposed ward's spouse, adult child, or parent, as described in paragraph (2), (3), or (4) of subsection (b) of Code Section 29-4-3;
   10. Whether any nominated guardian has consented or will consent to serve as guardian;
   11. If known, whether any nominated guardian 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 guardian is related to the proposed ward by blood, marriage, or adoption;
   12. Whether an emergency guardian has been appointed for the proposed ward or a petition for the appointment of an emergency guardian has been filed or is being filed;
   13. If known, a disclosure of any ownership or other financial interest that would cause any nominated guardian to have a conflict of interest with the proposed ward;
   14. A specific listing of any of the additional powers, as described in subsection (b) of Code Section 29-4-23, that are requested by the guardian and a statement of the circumstances that would justify the granting of additional powers;
   15. 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;
   16. That to petitioner's knowledge, there has been no petition for guardianship 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;
   17. 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
   18. The reason for any omission in the petition for appointment of a guardian 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 who is 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 on the examination, the proposed ward was determined to lack sufficient capacity to make or communicate significant, responsible decisions concerning the proposed ward's health or safety.
   3. In addition to stating the facts that support the claim of the need for a guardian, the affidavit shall state the foreseeable duration of the guardianship and may set forth the affiant's opinion as to any other limitations on the guardianship.
4. Within six months prior to the date a minor in the custody of the Division of Family and Children Services of the Department of Human Services reaches 18 years of age, the Division of Family and Children Services may file a petition for the appointment of a guardian for the minor when that minor becomes an adult, in accordance with the provisions of this article, to take effect on or after the date the minor reaches 18 years of age.

(Code 1981, §29-4-10, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2007, p. 133, § 8/HB 24; Ga. L. 2013, p. 884, § 1/HB 446; Ga. L. 2019, p. 693, § 6/HB 70; Ga. L. 2021, p. 151, § 14/HB 154.)

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 guardian. 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 guardianship 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 guardian."

The 2021 amendment, effective July 1, 2021, added subsection (d).

- Ga. L. 2007, p. 133, § 1/HB 24, not codified by the General Assembly, provides: "(a) The General Assembly has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn. In order to secure these rights, the General Assembly has adopted and amended statutes recognizing the living will and health care agency and provided statutory forms for both documents.

"(b) The General Assembly has determined that the statutory forms for the living will and durable power of attorney for health care are confusing and inconsistent and that the statutes providing for the living will and health care agency contain conflicting concepts, inconsistent and out-of-date terminology, and confusing and inconsistent requirements for execution. In addition, there is a commendable trend among the states to combine the concepts of the living will and health care agency into a single legal document.

"(c) The General Assembly recognizes that a significant number of individuals representing the academic, medical, legislative, and legal communities, state officials, ethics scholars, and advocacy groups worked together to develop the advance directive for health care contained in this Act, and the collective intent was to create a form that uses understandable and everyday language in order to encourage more citizens of this state to execute advance directives for health care.

"(d) The General Assembly finds that the clear expression of an individual's decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families. In furtherance of these purposes, the General Assembly enacts a new Chapter 32 of Title 31, setting forth general principles governing the expression of decisions regarding health care and the appointment of a health care agent, as well as a form of advance directive for health care."

- 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.

- 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).

- Decision granting a father guardianship of an adult autistic son was supported by sufficient evidence based on the son's desire to change domicile to the father's home, the son's desire to engage in more activities while at the father's home, as well as the testimony of the attorney appointed for the son, who indicated that while the son undoubtedly faced certain challenges due to autism, the son was not so mentally impaired to lack capacity to choose Georgia as the son's domicile. In the Interest of M. P., 338 Ga. App. 696, 791 S.E.2d 592 (2016).

- 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).

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 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, § 59 et seq.

13 Am. Jur. Pleading and Practice Forms, Guardian and Ward, § 9 et seq.

138 Am. Jur. Trials, Guardianships, § 15 et seq.

- 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.