Power of Guardian Over Minor; Obligations of Guardians; Liability of Guardian

  1. Law
  2. Georgia Code
  3. Guardian and Ward
  4. Guardians of Minors
  5. Protection of Minor
  6. Power of Guardian Over Minor; Obligations of Guardians; Liability of Guardian

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  1. The power of a guardian over the minor shall be the same as that of a parent over a child; the guardian standing in place of the parent. A guardian shall at all times act as a fiduciary in the minor's best interest and exercise reasonable care, diligence, and prudence.
  2. A guardian shall:
    1. Respect the rights and dignity of the minor;
    2. Arrange for the support, care, education, health, and welfare of the minor considering the minor's available resources;
    3. Take reasonable care of the minor's personal effects;
    4. Expend money of the minor that has been received by the guardian for the minor's current needs for support, care, education, health, and welfare;
    5. Conserve for the minor's future needs any excess money of the minor received by the guardian; provided, however, that if a conservator has been appointed for the minor, the guardian shall pay to the conservator, at least quarterly, money to be conserved for the minor's future needs;
    6. If necessary, petition to have a conservator appointed;
    7. Endeavor to cooperate with the conservator, if any;
    8. Within 60 days after appointment and within 60 days after each anniversary date of appointment, file with the court and provide to the conservator, if any, a personal status report concerning the minor, which shall include:
      1. A description of the minor's general condition, changes since the last report, and the minor's needs;
      2. All addresses of the minor during the reporting period and the living arrangements of the minor for all addresses; and
      3. Recommendations for any alteration in the guardianship order;
    9. Promptly notify the court of any conflict of interest between the minor and the guardian when the conflict arises or becomes known to the guardian and take such action as is required by Code Section 29-2-23;
    10. Keep the court informed of the guardian's current address; and
    11. Act promptly to terminate the guardianship when the minor dies, reaches age 18, is adopted, or is emancipated.
  3. A guardian, solely by reason of the guardian-minor relationship, is not personally liable for:
    1. The minor's expenses;
    2. Contracts entered into in the guardian's fiduciary capacity;
    3. The acts or omissions of the minor;
    4. Obligations arising from ownership or control of property of the minor; or
    5. Other acts or omissions occurring in the course of the guardianship.

(Code 1981, §29-2-21, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

- Rights and duties of permanent guardians of juveniles, § 15-11-242.

Parent and child relationship generally, § 19-7-1 et seq.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1822 and former Code 1933, § 49-201 are included in the annotations for this Code section.

Guardian stands in loco parentis to child, with duty to provide for the child's welfare. Where parental duty and control are lost to a third person by any of the ways recognized by law, such person stands in loco parentis to the child, with the duty and obligation to provide for the child's welfare. Hale v. Henderson, 210 Ga. 273, 79 S.E.2d 804 (1954) (decided under former Code 1933, § 49-201).

When there is no father or mother, the guardian becomes head of the family. Rountree v. Dennard, 59 Ga. 629, 27 Am. R. 401 (1877) (decided under former Code 1873, § 1822).

Guardian of minor child has same claim to custody.

- Former Code 1933, § 49-201 (former O.C.G.A. § 29-2-1) clearly indicated that guardian of person and property of minor child had same claim to custody of the child as the child's father would have had. Beavers v. Williams, 194 Ga. 875, 23 S.E.2d 171 (1942) (decided prior to revision of former Code 1933, § 49-201 by Ga. L. 1976, p. 688, § 4, at which time section employed term "father" rather than "parent").

Guardian's duty to maintain.

- Court cannot derive from the duty to protect and maintain, required by former Code 1933, § 49-201 (former O.C.G.A. § 29-2-1), a guardian's duty to visit the guardian's ward in the state hospital. Tucker v. Lea, 83 Ga. App. 207, 63 S.E.2d 252 (1951) (decided under former Code 1933, § 49-201).

Upon marriage between adult and underage ward, rights and powers of the guardian cease, both as respects her person and her estate, and the husband acquires the same right and incurs the same obligations which he acquires and incurs in case his wife is of age. Nicholson v. Wilborn & McWhorter, 13 Ga. 467 (1853) (decided under prior law).

Cited in Banister v. Bagley, 56 Ga. App. 615, 193 S.E. 480 (1937); Beavers v. Williams, 199 Ga. 114, 33 S.E.2d 343 (1945); Phillips v. Phillips, 203 Ga. 106, 45 S.E.2d 621 (1947); Loftis v. Johnson, 249 Ga. 794, 294 S.E.2d 511 (1982); Dep't of Corr. v. Barkwell, 256 Ga. App. 877, 570 S.E.2d 13 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 49-201 are included in the annotations for this Code section.

Whereabouts of minor child would seem to fall within area of parental or guardianship responsibility and therefore the primary responsibility for locating a child who is absent from an educational center or school on an unauthorized basis would fall upon parents or other guardians or custodians. 1978 Op. Att'y Gen. No. 78-48 (decided under former Code 1933, § 49-201).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 1 et seq., 86 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 56 et seq., 75 et seq., 283 et seq.

ALR.

- Right of natural guardian to custody or control of infant's property, 6 A.L.R. 115.

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.

Appointment of guardian for infant as affecting rights and duties of parents, 63 A.L.R. 1147.

Right and obligation of guardian other than parent in respect of services rendered by, or board or services furnished to, ward, 64 A.L.R. 692.

Care required of trustee or guardian with respect to retaining securities coming into his hands as assets of the estate, 77 A.L.R. 505.

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.

Power of guardian or committee of incompetent in respect of insurance on ward's life, or of policy under which he has interest, 84 A.L.R. 366.

Power and duty of trustee, executor, administrator, or guardian as regards protection of investment in stocks by submitting to voluntary assessment, 104 A.L.R. 979.

Ownership by trustee, executor, or guardian in his own right of stock in a corporation in which he also holds stock in his fiduciary capacity, 106 A.L.R. 220; 161 A.L.R. 1039.

Authority of next friend or guardian ad litem, or of attorney employed by him, to receive payment or acknowledge satisfaction of judgment in favor of infant, 111 A.L.R. 686.

Improper handling of funds, investments, or assets as ground for removal of guardian of infant or incompetent, 128 A.L.R. 535.

Guardian's contract employing attorney as binding on ward or his estate, 171 A.L.R. 468.

Power of guardian of incompetent to change beneficiary in ward's life insurance policy, 21 A.L.R.2d 1191.

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

Power to make charitable gifts from estate of incompetent, 99 A.L.R.2d 946.

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

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.

Judicial power to order discontinuance of life-sustaining treatment, 48 A.L.R.4th 67.

Power of incompetent spouse's guardian or representative to sue for granting or vacation of divorce or annulment of marriage, or to make compromise or settlement in such suit, 32 A.L.R.5th 673.


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