The probate court of the county in which a minor is found or in which the proposed permanent guardian is domiciled shall have the power to appoint a permanent guardian for a minor who has no natural guardian, testamentary guardian, or permanent guardian. In its discretion, the probate court of the county in which the petition for appointment of a permanent guardian is filed may transfer the case to the probate court of any other county in this state if such transfer would serve the best interest of the minor.
(Code 1981, §29-2-14, enacted by Ga. L. 2004, p. 161, § 1.)
Cross references.- Jurisdiction of courts to appoint guardian of child, § 15-11-6.
Appointment of guardian ad litem in probate proceedings, § 53-3-19 (Pre-1998 Probate Code).
Provision that surviving spouse under 18 years may take share of estate without intervention of guardian, § 53-4-2(3) (Pre-1998 Probate Code).
Law reviews.- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "Trusts for Dependents: Effect of Georgia's Support Obligation on Federal Income Taxation," see 8 Ga. St. B.J. 323 (1972). For article, "Wills, Trusts & Administration of Estates," see 53 Mercer L. Rev. 499 (2001).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under Ga. Laws 1850, Cobb's 1851 Digest, p. 338, former Code 1868, § 1797, former Code 1882, § 1806, former Civil Code 1895, § 2516, former Code 1933, § 49-105, and former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.
Probate judge has appointment power for benefit of child.
- Power of appointment is vested in ordinary (now judge of probate court), for benefit of child, not of applicant. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb's 1851 Digest, p. 338).
Guardian of the property.
- Former O.C.G.A. § 29-4-4 authorized a probate court to appoint a guardian of the property, over the natural guardian's objection, of a minor over the age of 14, whose sole property was a personal injury action. In re Ray, 248 Ga. App. 45, 545 S.E.2d 617 (2001) (decided under former O.C.G.A. § 29-4-4).
Discussion of former Civil Code 1895,
§ 2516 (former O.C.G.A. § 29-4-4) application when child had natural guardian. - See Jordan v. Smith, 5 Ga. App. 559, 63 S.E. 595 (1909) (decided under former Civil Code 1895, § 2516).
Generally cannot appoint guardian of person when parent is living.
- The ordinary (now judge of probate court) had no power under former Civil Code 1895, § 2516 (former O.C.G.A. § 29-4-4) to appoint guardian of person of child whose father was living, unless parental rights of latter have been forfeited and the forfeiture had been ascertained and declared in some regular proceeding authorized by law, after due notice to him. Jordan v. Smith, 5 Ga. App. 559, 63 S.E. 595 (1909) (decided under former Civil Code 1895, § 2516).
Acting guardian estopped from arguing lack of venue regarding appointment.
- One appointed and acting as guardian estopped from claiming court of wrong county made appointment. Hines v. Mullins ex rel. Smith, 25 Ga. 696 (1858) (decided under Ga. Laws 1850, Cobb's 1851 Digest, p. 338).
Effect of guardian's death upon guardianship.
- Relation of guardian and ward is necessarily terminated by death of either, and if terminated by death of guardian, it is the duty of guardian's personal representative to render an account and turn over property in the guardian's hands to proper person, and the guardianship continues, in a sense, to exist for that purpose only. Harrison v. Tonge, 67 Ga. App. 54, 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).
Cited in Nicholson v. Spencer, 11 Ga. 607 (1852); Perkins v. Attaway, 14 Ga. 27 (1853); Wood v. Crawford, 18 Ga. 526 (1855); McBain v. Wimbish, 27 Ga. 259 (1859); Beard v. Dean, 64 Ga. 258 (1879); Bulloch v. Bulloch, 45 Ga. App. 1, 163 S.E. 708 (1932); Price v. Matthews, 68 Ga. App. 510, 23 S.E.2d 535 (1942); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Henderson v. Hale, 209 Ga. 307, 71 S.E.2d 622 (1952); Sailors v. Spainhour, 98 Ga. App. 475, 106 S.E.2d 82 (1958); Adams v. Adams, 219 Ga. 633, 135 S.E.2d 428 (1964); Mathis v. Sapp, 232 Ga. 620, 208 S.E.2d 446 (1974).
Ward's Right to Select
At age of 14 ward may choose new guardian.
- Pursuant to former Code 1868, § 1797 (former O.C.G.A. § 29-4-4), a ward, after attaining an age of 14 years, has right to choose a guardian, and for that purpose to have letters of guardianship issued under appointment of ordinary (now judge of probate court) to former guardian, revoked. Bryce v. Wynn, 50 Ga. 332 (1873) (decided under former Code 1868, § 1797).
Proceeding for ward to select new guardian.
- The first step which ward must take to remove guardian appointed by the ordinary (now judge of probate court), and substitute therefor one of the ward's own selection, after the ward has arrived at age to make such selection, is to institute a proceeding to revoke letters of guardian. The ward can only do this by petition filed in court of ordinary (now probate court) of county of guardian's appointment. Dickerson v. Bowen, 128 Ga. 122, 57 S.E. 326 (1907) (decided under former Civil Code 1895, § 2516).
Ward may appeal when denied right to select guardian.
- If legal right of ward is adversely affected by order of ordinary (now judge of probate court) appointing new guardian not selected by ward, the ward has right of appeal to superior court. Fouts v. Flythe, 54 Ga. App. 108, 187 S.E. 160 (1936) (decided under former Code 1933, § 49-105).
On appeal the whole case is tried anew, and discretion of ordinary (now judge of probate court) vests in superior court for that trial. Watson v. Warnock, 31 Ga. 716 (1861) (decided under Ga. Laws 1850, Cobb's 1851 Digest, p. 338).
Jurisdiction
Guardianship letters granted only at regular term of court were without jurisdiction. Where proceedings show on their face that letters were granted by ordinary (now probate judge) at chambers, the appointment was made without jurisdiction, and is void. Bell v. Love, 72 Ga. 125 (1883) (decided under former Code 1882, § 1806).
Infant's residence at time guardian appointed determines jurisdiction.
- Infant's place of residence at time guardian is to be appointed determines jurisdiction; hence the ordinary (now judge of probate court) who appointed the first guardian of a ward may not always appoint the guardian's successor. Harrison v. Tonge, 67 Ga. App. 54, 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).
No jurisdiction to appoint guardian for infant residing outside county.
- Ordinary (now judge of probate court) has no jurisdiction to appoint guardian for infant whose residence is out of the county. Rives v. Sneed, 25 Ga. 612 (1858) (decided under Ga. L. 1850, Cobb's 1851 Digest, p. 338).
Judge of residence approves guardian selection.
- It is for probate judge of ward's county of residence to approve or disapprove selection. Dickerson v. Bowen, 128 Ga. 122, 57 S.E. 326 (1907) (decided under former Civil Code 1895, § 2516).
Letters of guardian must be revoked to appoint new guardian.
- After jurisdiction to appoint guardian has been exercised, a new guardian cannot be appointed until letters of former guardian have been revoked. Harrison v. Tonge, 67 Ga. App. 54, 19 S.E.2d 535 (1942) (decided under former Code 1933, § 49-105).
Jurisdiction over removal and new appointments where guardian and ward leave county without removing trust, see Fouts v. Flythe, 54 Ga. App. 108, 187 S.E. 160 (1936) (decided under former Code 1933, § 49-105).
Cannot collaterally attack right of guardianship.
- Judgments rendered under court's jurisdiction over controversies concerning right of guardianship cannot be collaterally attacked. Beavers v. Williams, 194 Ga. 875, 23 S.E.2d 171 (1942) (decided under former Code 1933, § 49-105).
Cannot collaterally attack appointment unless want of jurisdiction.
- Judgment of court of ordinary (now probate court) appointing guardian cannot be collaterally attacked, unless want of jurisdiction appears on face of record. Sturtevant v. Robinson, 133 Ga. 564, 66 S.E. 890 (1909) (decided under former Civil Code 1895, § 2516).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 29-4-4 are included in the annotations for this Code section.
Cannot appoint guardian of person where child has living parent.
- Unless an appointment of a temporary guardian was made under former O.C.G.A. § 29-4-4.1, a probate court was without authority to appoint a guardian of the person for a minor child if the child had living parents, unless the parents relinquished or forfeited their rights in the child. 1983 Op. Att'y Gen. No. U83-37 (decided under former O.C.G.A. § 29-4-4).
RESEARCH REFERENCES
Am. Jur. 2d.
- 39 Am. Jur. 2d, Guardian and Ward, §§ 19 et seq., 31 et seq.
C.J.S.- 39 C.J.S., Guardian and Ward, § 10 et seq.
ALR.
- Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111.
Consideration and weight of religious affiliations in appointment or removal of guardian for minor child, 22 A.L.R.2d 696.
Right of infant to select his own guardian, 85 A.L.R.2d 921.
Priority and preference in appointment of conservator or guardian for an incompetent, 65 A.L.R.3d 991.