Obligations of Conservator; Liability of Conservator

1. Law
2. Georgia Code
3. Guardian and Ward
4. Conservators of Minors
5. Rights of Minor and Obligations of Conservator
6. Obligations of Conservator; Liability of Conservator

1. A conservator shall receive, collect, and make decisions regarding the minor's property, except as otherwise provided by law or by the court. A conservator shall at all times act as a fiduciary in the minor's best interest and exercise reasonable care, diligence, and prudence.
2. A conservator shall:
   1. Respect the rights and dignity of the minor;
   2. Be reasonably accessible to the minor and maintain regular communication with the minor;
   3. Petition to have a guardian appointed if necessary;
   4. Endeavor to cooperate with the guardian, if any;
   5. Provide for the support, care, education, health, and welfare of the minor, considering available resources;
   6. Give such bond as required by Code Section 29-3-40;
   7. Within two months of appointment, file with the court and provide to the guardian, if any, an inventory of the minor's property and a plan for administering the property, pursuant to the provisions of Code Section 29-3-30;
   8. Take into account any estate plan of the minor known to the conservator in the administration of the conservatorship;
   9. Keep accurate records including adequate supporting data and file annual returns as required by Code Section 29-3-60;
   10. Promptly notify the court of any conflict of interest between the minor and the conservator when the conflict arises or becomes known to the conservator and take such action as is required by Code Section 29-3-23;
   11. Keep the court informed of the conservator's current address; and
   12. Act promptly to terminate the conservatorship when the minor reaches the age of majority.
3. A conservator, solely by reason of the conservator-minor relationship, is not personally liable for:
   1. The minor's expenses;
   2. Contracts entered into in the conservator'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 conservatorship.

(Code 1981, §29-3-21, enacted by Ga. L. 2004, p. 161, § 1.)

Cross references.

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

Administrator's duty to file inventory, § 53-7-75 (Pre-1998 Probate Code).

Law reviews.

- For survey article on wills, trusts, guardianships, and fiduciary administration, see 60 Mercer L. Rev. 417 (2008).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1855-56, p. 147, § 1, former Code 1895, § 2571, and former Code 1933, § 49-231, former Code 1933, § 49-603, as it read prior to revision by Ga. L. 1980, p. 1661, § 1, and former O.C.G.A. § 29-5-2 are included in the annotations for this Code section.

Guardian failing to make annual return forfeits annual commission.

- Under former O.C.G.A. § 29-2-44 and O.C.G.A. § 53-6-146, guardians and administrators who fail to make annual returns as required by law forfeit their commissions for those years unless the judge of the probate court orders them relieved of this forfeiture. Fuller v. Moister, 246 Ga. 397, 271 S.E.2d 622 (1980) (decided under former Code 1933, § 49-231).

Failure entails burden of proving faithful discharge of duties.

- Failure of executor or guardian to make returns is an omission of duty, and therefore a breach of trust, and puts upon the executor the burden of proving to satisfaction of court that the executor discharged trust with fidelity. Wellborn v. Rogers, 24 Ga. 558 (1858) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to make returns of interest does not demonstrate fraud.

- Failure of guardian to make returns of interest accumulated in guardian's hands is not by itself sufficient to authorize finding of fraud and charging of compound interest. Royston v. Royston, 29 Ga. 82 (1859) (decided under Ga. L. 1855-56, p. 147, § 1).

Failure to explain reason for selection of county guardian.

- Probate court, when selecting a new guardian for appellant, erred in failing to consider appellant's next of kin; because the hearing was not recorded, and because the order failed to explain the reason the probate court selected the county guardian as the new guardian, the record supported appellant's argument that the probate court failed to consider the statutory preferences of former O.C.G.A. § 29-5-2(c) in naming a new guardian. In re Phillips, No. A02A2368, Ga. App. , S.E.2d (Oct. 9, 2002) (decided under former O.C.G.A. § 29-5-2).

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 Byne v. Anderson, 67 Ga. 466 (1881); Davis v. Culpepper, 167 Ga. 637, 146 S.E. 319 (1929); Jennings v. Longino, 49 Ga. App. 494, 176 S.E. 94 (1934); Dowdy v. Jordan, 128 Ga. App. 200, 196 S.E.2d 160 (1973); Twitty v. Akers, 218 Ga. App. 467, 462 S.E.2d 418 (1995); Gary v. Weiner, 233 Ga. App. 284, 503 S.E.2d 898 (1998); Head v. Head, 234 Ga. App. 469, 507 S.E.2d 214 (1998); Graves v. Brown, 237 Ga. App. 589, 516 S.E.2d 324 (1999); Howard v. Estate of Howard, 249 Ga. App. 287, 548 S.E.2d 48 (2001).

RESEARCH REFERENCES

Am. Jur. 2d.

- 39 Am. Jur. 2d, Guardian and Ward, §§ 86 et seq., 185 et seq.

C.J.S.

- 39 C.J.S., Guardian and Ward, §§ 56 et seq., 75 et seq., 140 et seq., 210 et seq., 183 et seq. 57 C.J.S., Mental Health, §§ 135 et seq., 176 et seq., 185 et seq.

ALR.

- Resignation or removal of executor, administrator, guardian, or trustee, before final administration or before termination of trust, as affecting his compensation, 94 A.L.R. 1101; 96 A.L.R.3d 1102.

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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