Authority of Guardian; Appointment of Guardian Ad Litem

1. Law
2. Georgia Code
3. Guardian and Ward
4. Guardians of Minors
5. Protection of Minor
6. Authority of Guardian; Appointment of Guardian Ad Litem

1. The appointment of a guardian shall vest in the guardian the exclusive power, without court order, to:
   1. Take custody of the person of the minor and establish the minor's place of dwelling within this state;
   2. Subject to Chapters 9, 20, and 36 of Title 31 and any other pertinent law, give any consent or approval that may be necessary for medical or other professional care, counsel, treatment, or services for the minor;
   3. 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 minor in the name of or on behalf of the minor;
   4. Execute a surrender of rights to enable the adoption of the minor pursuant to the provisions of Article 1 of Chapter 8 of Title 19 or the adoption laws of any other state; and
   5. Exercise those other powers reasonably necessary to provide adequately for the support, care, education, health, and welfare of the minor.
2. At the time of the appointment of the guardian or at any time thereafter, any of the following powers may be specifically granted by the court to the guardian upon such notice, if any, as the court shall determine, provided that no disposition of the minor's property shall be made without the involvement of a conservator, if any:
   1. To establish the minor's place of dwelling outside this state;
   2. To change the jurisdiction of the guardianship to another county in this state that is the county of the minor's place of dwelling, pursuant to Code Section 29-2-60;
   3. To change the domicile of the minor to the minor's or the guardian's place of dwelling, in the determination of which the court shall consider the tax ramifications and the succession and inheritance rights of the minor and other parties;
   4. To consent to the marriage of the minor;
   5. To receive reasonable compensation from the estate of the minor for services rendered to the minor; and
   6. If there is no conservator, to disclaim or renounce any property or interest in property of the minor in accordance with the provisions of Code Section 53-1-20.
3. Before granting any of the powers described in subsection (b) of this Code section, the court shall appoint a guardian ad litem for the minor and shall give notice to any natural guardian of the minor.
4. In granting any of the powers described in subsection (b) of this Code section, the court shall consider the property rights of the minor and the views of the conservator, if available, or, if there is no conservator, of others who have custody of the minor's property.
5. In performing any of the acts described in this Code section, the guardian shall act in coordination and cooperation with the conservator or, if there is no conservator, with others who have custody of the minor's property.

(Code 1981, §29-2-22, enacted by Ga. L. 2004, p. 161, § 1; Ga. L. 2009, p. 800, § 5/HB 388; Ga. L. 2011, p. 752, § 29/HB 142.)

Cross references.

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

Appointment of guardian ad litem, § 15-11-9.

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

Powers of sale when exercisable by successor administrator, trustee, or guardian, § 23-2-116.

Editor's notes.

- Ga. L. 2009, p. 800, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Option of Adoption Act.'"

Law reviews.

- For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 1838 are included in the annotations for this Code section.

Jurisdiction of juvenile court in transferred custody proceeding.

- Georgia Supreme Court affirmed the transfer of a father's petition for custody from Gwinnett County, Georgia, to Douglas County, Georgia, because the "complaint for custody" that the father filed in Gwinnett County fairly was read as a petition to modify, vacate, or revoke the permanent guardianship, a petition over which the Juvenile Court of Douglas County had exclusive jurisdiction under the circumstances. In the Interest of M. F., 298 Ga. 138, 780 S.E.2d 291 (2015).

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).

Letters of testamentary guardianship.

- Superior court erred in granting an aunt and uncle custody of minor children because the court lacked subject matter jurisdiction to consider the petition for custody since a probate court had exclusive jurisdiction to issue and revoke letters of testamentary guardianship, and O.C.G.A. § 29-2-4(b) mandated the issuance of letters of testamentary guardianship to the brother of the children's father without notice and a hearing and without consideration of the children's best interests; equity afforded no valid basis for the superior court's exercise of jurisdiction because the aunt and uncle had an appropriate remedy in the probate court to challenge the testamentary guardianship: a petition for revocation or suspension of the brother's letters of testamentary guardianship. Zinkhan v. Bruce, 305 Ga. App. 510, 699 S.E.2d 833 (2010).

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).

Attorney's fees.

- Because a lawyer failed to present any evidence of the value of the lawyer's services at a probate hearing, the trial court was left to determine that value based on its own experience; since the lawyer failed to prove that the contingency agreement with the beneficiaries of an estate provided for a reasonable fee, the trial court was authorized to determine that $15,000 was a reasonable fee. Rowen v. Estate of Hughley, 272 Ga. App. 55, 611 S.E.2d 735 (2005).

Guardian had not sought change of domicile.

- In a wrongful death action, a decedent's minor children remained domiciled in Georgia because the guardian had not applied to a probate court to change the children's domicile to Alabama as required by O.C.G.A. § 29-2-22(b). D.R. v. Grant, 770 F. Supp. 2d 1337 (M.D. Ga. 2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 70 et seq., 86 et seq.

C.J.S.

- 43 C.J.S., Infants, § 407 et seq. 57 C.J.S., Mental Health, §§ 176 et seq., 185 et seq.

ALR.

- 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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